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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kyle S. v. State, Dept. of Health & Social Services, Office of Children's Services (10/4/2013) sp-6832

Kyle S. v. State, Dept. of Health & Social Services, Office of Children's Services (10/4/2013) sp-6832, 309 P3d 1262

         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  



KYLE S.,                                              )  

                                                      )        Supreme Court No. S-14975  

                           Appellant,                 )  

                                                      )        Superior Court No. 4FA-11-00076 CN  

         v.                                           )  

                                                      )       O P I N I O N  

STATE OF ALASKA,                                      )  

DEPARTMENT OF HEALTH &                                )       No. 6832 - October 4, 2013  

SOCIAL SERVICES, OFFICE OF                            )  

CHILDREN'S SERVICES,                                  )  

                                                      )  

                           Appellee.                  )  

                                                      )  



                  Appeal from the Superior Court of the State of Alaska, Fourth  

                                                                     

                  Judicial District, Fairbanks, Randy M. Olsen, Judge.  



                  Appearances: Hanley Robinson, Assistant Public Defender,  

                  and   Quinlan   Steiner,   Public   Defender,   Anchorage,   for  

                  Appellant.  Janell M. Hafner, Assistant Attorney General, and  

                                           

                  Michael C. Geraghty, Attorney General, Juneau, for Appellee.  



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

                                                                                 

                  Bolger, Justices.  



                  FABE, Chief Justice.  


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

I.        INTRODUCTION  



                   Kyle  S.  appeals  the  superior  court's  decision  adjudicating  his  teenage  



                                                     1  

                                                       Jane was taken into State custody when she was  

daughter Jane a child in need of aid. 



15 years old, after she reported being physically abused by her stepmother. The superior                    



court  based  its  adjudication  decision  on  Jane's  propensity  to  run  away;  it  made  no  



                                                                                                     

findings about either Kyle or his wife.  At the time of the adjudication hearing, Jane was  



                                               

also involved with the Division of Juvenile Justice because of several criminal charges.  



                              

Kyle challenges the court's adjudication decision, arguing that the statutory subsection  



about  runaways  is  unconstitutional  as  applied  to  him  and  that  the  court  incorrectly  



                 

concluded that the State made active efforts to prevent the family's breakup.  Because  



                                                                                           

Kyle waived his constitutional argument by not raising it below and because the superior  



court's active-efforts decision is supported by the record, we affirm the superior court's  



decision.  



II.       FACTS AND PROCEEDINGS  

                                                                       2   At the time of the adjudication trial,  

                                                                           

                   Jane S. is a 17-year-old Indian child.  



Jane had been placed in Sitka, and her father was living in another state.  Jane's mother  



died when Jane was young.  Her father, Kyle, has been in a relationship with his current  



wife, Sybil, since 2002; they married when Jane was eight years old.  Jane has an older  



maternal half sister, Dora; an older sister, Linda; and a younger stepsister, Brenda.  



                   The Office of Children's Services (OCS) had sporadic contact with the  



                                                         

family over the course of several years, largely due to concerns about domestic violence.  



                                                                                                              

Sybil was charged with assaulting Kyle several times; one criminal case included  a  



                                                                                                

charge of reckless endangerment in which Linda was the victim.  According to a social  



          1        We use pseudonyms throughout to protect the parties' privacy.  



          2        25 U.S.C.  1903(4) (2006).  



                                                            -2-                                                          6832  


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

worker, OCS met with Kyle to develop care and safety plans in 2004 and 2006, which   



involved Sybil not being in the home with the children, but Kyle did not follow these   



plans.  OCS took no legal action then because according to the social worker, "it didn't         



rise to the level for [OCS] to do court intervention."  



                       Some time in early August 2011 the family decided to move to another  



                                                                             

state.  Jane was taken into State custody on August 23.  Three days later, at the first  



                                                                                                               

emergency custody hearing on August 26, Kyle told the court that the family had already  



                                                                                                               

leased a house in the other state, enrolled the children in school, and would be leaving  



                                                                                                                          

Fairbanks on September 1.   He told the court that they were moving to get medical  

                             3 and to get Jane away from her friends, whom he considered to be bad  

treatment for him                                                                                



influences.  



                       At the time of the events that prompted OCS to take custody of Jane, Linda,  

                                               



who was 18 years old, and Brenda also lived in the family home.  In early August 2011  

                                                                                        



Jane reported that Sybil beat her with a belt to discipline her for failing to do her chores.  



Sybil used spanking with a belt to discipline all the children, but this time Jane "got  



                                                                                                          

mouthy" and refused to let Sybil spank her.  Jane reported that Sybil slapped her, pulled  



her hair, and started hitting her with the belt.  A social worker testified that Brenda  



corroborated Jane's account of the incident.  



                                                                                          

                       Kyle was in the garage at the time.  He testified that he "became aware of  



                                  

an altercation" and intervened.  Jane went to a neighbor's house; Linda took Brenda to  



                                                                                      

the same neighbor's house and then left the home.  Kyle and Sybil had a fight after Jane  



                                                                                  

left.  After someone contacted police, Jane was taken to a child advocacy center for an  



                                                                   

interview. She had bruises on her arms and legs and some scratch marks on her neck and  



           3           Kyle  has  several  medical  conditions  and  is  eligible  for  Social  Security  



disability.  



                                                                       -3-                                                                     6832  


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

back.  Sybil was arrested and ultimately charged with fourth-degree assault.  The charges  



were unresolved at the time of the adjudication hearing.  



                                

                    A team decision meeting, which Kyle attended, was held on August 12.  



           

Those involved agreed to a safety plan, deciding that Jane would stay with a friend.  Jane  



evidently got in trouble at the friend's house, and she was sent home.  According to  



                                                                    4 

                                                                       On August 18, in Sybil's criminal case,  

Kyle, Jane was back at home for nearly a week. 



the court lifted a no-contact order between Sybil and Jane as long as Kyle or another  



         

adult was there.  After the criminal hearing the OCS caseworker spoke to Sybil, asking  



her not to return to the home.  Kyle told the social worker that in his opinion the criminal  



                                                                                              

order took precedence over the safety plan and that OCS should not be involved with his  



family.  Sybil returned to the family home that evening.  



                    According to Kyle, he had set up a doctor's appointment for Jane after  

school  for  the  day  after  Sybil's  return,  in  compliance  with  the  OCS  plan,5  but  Jane  



skipped school and did not come home on the bus.  Kyle testified that he found Jane  



                                                                             

"drinking in the woods" after looking for her "for a few hours."  Jane asked to stay with  



her half sister Dora, and Kyle allowed her to do so.  After Sybil returned to the house,  



                                                                                                                 

OCS scheduled a second team decision meeting, which Kyle did not attend.  OCS then  



took emergency custody of Jane and placed her with Dora.  



                                  

                    Jane ran away from Dora's within a day or two.  OCS sought, and the  



superior  court  granted,  an  order  that  she  remain  in  placement;  Kyle  found  her  that  



weekend.  



          4         Sybil and Brenda were staying with relatives at the time.  



          5         Jane has a medical condition, and OCS was concerned it was not being   



treated adequately.  



                                                             -4-                                                           6832  


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

                        The superior court held a contested emergency temporary custody hearing       



on August 31 and September 1.    At the end of the hearing, the superior court found     

probable cause to believe that Jane was a child in need of aid due to physical harm                                                                    6  



                                                                                                                                   7 

(because of the allegations about Sybil's physical abuse) and mental injury  (because of 

                                                                                                     



the domestic violence between Kyle and Sybil).  OCS again placed Jane with Dora.  



                        Jane ran away from Dora's home several times in the ensuing months.  



                                                                                    

According to Nicole Havrilek, the OCS social worker who took over the case in mid- 



September  2011  and  who  testified  at  the  adjudication  hearing,  Jane  ran  away  from  



                                                                 8 

Dora's house sometime in September  and was arrested in October. Jane ran away from 

                                                                                                                        



Dora's home again in the fall and returned "right before the Thanksgiving holiday."  Jane  

                                                    



then stayed at Dora's for about four months without running away.  According to a later  

                                                                                                           



mental health assessment of Jane, Dora said Jane had been doing well in school before  

                                                                                                                             



March 2012, but "seemed to drift away - and was likely high several times."  Dora  

                                                                                                                   



reported that Jane "was lying more and more" and was "droopy-eyed" after school at  



times.  Jane ran away again in early April 2012.  



                        The parties attended a mediation session in early December and reached an  



agreement  about  steps  to  take  to  resolve  the  case.    The  court  ordered  an  Interstate  



                                                                                 

Compact on the Placement of Children home study in early February 2012 to determine  



                 

whether Jane could be placed in Kyle's home.  The other state denied placement with  



            6           AS 47.10.011(6).  



            7           AS 47.10.011(8).  



            8           Jane was missing when Havrilek took over the case.  



                                                                          -5-                                                                        6832  


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

                                                                      9 

                                                                         

Kyle "based on [Jane's] criminal involvement."   Kyle began counseling in late 2011 and  



continued until June 2012.  



                                                                                                             

                    In early April 2012, after Jane was caught shoplifting, she ran away from  



                                                                       

Dora's house again and was missing for about a month; she had gone to Circle with her  



                                

boyfriend, who was "slightly older."  After Jane ran away in April, Dora found spice, or  

synthetic marijuana, in Jane's room.10  



                    Jane was picked up in May near the Fairbanks Correctional Center, where  



her boyfriend was visiting his mother, who was in jail on drug-related charges; Jane was  



placed in Fairbanks Youth Facility (FYF), where she remained until July.  While Jane  



                                                                                           

was at FYF, Linda "brought Valium into the facility to her," evidently at Jane's request.  



                                    

Jane took some of the pills and gave some to other residents; she was charged with  



                                                  

several drug-related crimes as a result.  At the time of the CINA adjudication trial, not  



all of Jane's juvenile charges had gone to adjudication or disposition.  



                    No one disputes that Jane has substance abuse problems.  Her probation  



                                                     

officer, Shay Daniels, testified that when Jane was picked up in May, her THC level was  



the highest that anyone in the juvenile probation office had ever seen.  Jane reported  



                                                                                                     

having used spice, hallucinogenic mushrooms, and other inhalants like "whippets" and  



          9         Jane's involvement with the Division of Juvenile Justice (DJJ) began before  



OCS took custody of her:  Jane first had contact with DJJ when she was in junior high  

                                                                          

school; she was referred to DJJ after being caught with alcohol and marijuana on school  

                                                        

grounds.  In June 2011 Jane and a friend "ran off" after taking a cab and not paying for  

it.  When Jane was stopped by police, she gave a false name.  She was required to pay  

                                                                                                            

restitution and write an apology.  Shortly after OCS took custody of her, Jane and two  

                                                                        

friends stole a backpack containing a video recorder and some money.  In October 2011  

                                                                               

Jane was again caught with marijuana at school, and DJJ filed its first formal petition.  

                                                               

Further incidents happened in 2012.  



          10  

                                                            

                    Jane later told an assessor that she used spice and "duster" because they did  

not show up on urinalysis testing.  



                                                               -6-                                                         6832
  


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

"duster," as well as alcohol, tobacco, and marijuana.  She reported to a DJJ substance  



                                                                                                        

abuse evaluator that she had used sedatives "for a couple of years on and off" and tried  



                                                                                                  

methadone once.  Because of the severity of her substance abuse, OCS was initially not  



able to place her in a residential program it had selected for her.   



                                  

                    DJJ and OCS arranged for Jane to go to Sitka in July for "an adventure  



based substance abuse treatment program" called Raven's Way.  Daniels testified that  



                                           

the decision to place Jane at Raven's Way was based on Sitka's location on an island so  



Jane could not "run very far" if she ran away.  At the time of the adjudication hearing  



Jane had completed the program at Raven's Way and was living at Hanson House, a  



                                                                                           

"residential program that . . . deals with . . . juveniles who have emotional or mental  



                                                                                                                    

health issues."  Jane was attending public school, but she remained involved with DJJ.  



                                                                                            

                    An adjudication hearing was held in September and October, 2012.  At the  



hearing, OCS asked the court to find Jane to be a child in need of aid based on her  



                                                                                                               11  

running away and the behaviors she engaged in when she was a runaway.                                              The State  



                                                                              

presented testimony about Jane's treatment to date, her substance abuse problems, and  



                                                                               

her involvement with DJJ.  Kyle did not testify and presented no witnesses.  Havrilek  



reported  that  Jane  was  doing  well  at  Hanson  House  at  the  time  of  the  adjudication  



hearing.  Jane was in group therapy as well as individual therapy; she also attended  



Alcoholics Anonymous and Narcotics Anonymous meetings and received substance  



                                                                                                         

abuse counseling.  Hanson House provided "therapeutic interventions . . . all throughout  



                                              

the day except for when she's sleeping."  Although OCS did not allege parental conduct  



                                              

as a basis for a CINA finding, it justified retaining custody in part because of her home  



                                                                                  

environment, particularly Sybil's history of violence.  According to her counselor from  



          11  

                                                                                                            

                    AS 47.10.011(5) provides that a child can be found to be a child in need of  

aid if "the child is habitually absent from home or refuses to accept available care and  

the child's conduct places the child at substantial risk of physical or mental injury."  



                                                              -7-                                                            6832  


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

Hanson House, Jane was "skeptical" that things had changed in her family home and was  



                                                                       

afraid of Sybil.  The counselor testified that Jane had stated she would run away if she  



                                                                                 

were returned to her father's home.  At the time of the adjudication trial, Hanson House  



had not begun family therapy; the therapist testified that if family therapy occurred, it  

would begin in phase two of the program, and Jane was only in phase one.12  



                                                                                                                     

                     The testimony indicated that Kyle had found a counselor and  attended  



                                                                                                          

counseling  from  late 2011 until June 2012.   OCS  began  to  pay  for his treatment  in  



                                                                                                                     

February 2012, but there were ongoing problems with billings.  Kyle and Havrilek had  



not communicated as agreed in the December mediation, and Havrilek did not know  



whether he had attended parenting classes or addressed other concerns she had.  



                                                                                    

                     Kyle had one in-person visit with Jane, in December 2011.  Visitation was  



                                                                    

complicated by Jane's running away. OCS began to supervise Kyle's phone contact with  



                  

Jane after OCS requested a paternity test "to undeniably establish paternity" and Kyle  

                                                                                                    13  Havrilek testified on  

                                                                                                         

repeatedly asked Jane to tell the court she did not want the test.  



October 1, 2012, that to the best of her knowledge, the last time Kyle had contact of any  



                                                                          

kind with Jane was in June 2012.  Jane was not able to have phone contact while she was  



                                             

in Raven's Way because of the nature of the program.  Havrilek left the issue of phone  



                                                                                                           

contact to Hanson House after Jane's admission there, so Havrilek had not given Kyle  



           12        Jane's therapist at Hanson House testified that the discharge plan as of the     



time  of  the  adjudication  trial  was  for  Jane  to  possibly  go  to  therapeutic  foster  care  

followed by independent living, or for placement with her paternal grandmother or Dora,  

                                                                                                        

and  she testified that it was not always appropriate to work on repairing the child's  

        

relationship with the family of origin.  Havrilek testified that the goal in the CINA case  

                                                                                                                   

was  reunification.  Daniels  indicated  that  DJJ's  long-term  plan  was  for  Jane  to  

                                

"transition[] either back to [Dora] or maybe to her grandparents."  Dora had moved to  

Connecticut by this time, and Jane's grandmother lived in Ohio.  



           13  

                                                   

                     Kyle opposed the request and balked at having the testing done; the test  

showed he is Jane's father.  



                                                                  -8-                                                            6832
  


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

information  about  how  he  could  contact  Jane  at  Hanson  House  if  he  wanted  to.  

                                      



According to Havrilek, Jane had "historically" been interested in having contact with her  



father, but in the month preceding the adjudication hearing, Jane had not said she wanted  



                                                                                                                     

to have contact with him.  The Hanson House counselor testified that Jane did want to  



have contact with Kyle; she was unsure whether Jane had had any telephone contact with  



Kyle  since  arriving  there,  although  she  knew  Jane  was  in  contact  with  her  sister.  



                                                                                        

Havrilek agreed that Kyle had asked for contact with Jane, and Kyle wrote to the court  



in May complaining about his lack of contact with Jane.  



                    Kyle argued in closing that OCS had not made active efforts to reunify the  



family, faulting OCS for failing to act earlier in the case to place Jane in a residential  



                                                                                            

program  and  contending  that OCS's  actions  had  resulted  in  Kyle  being  "essentially  



                                                                         

estranged from his daughter and OCS coming up with essentially a transition plan that's  



                                                                                                          

going to involve keeping [Kyle] out of her life until she ages out of the system."  Kyle  



argued that the State is empowered to take legal custody in a CINA case only "where  



there are severe parenting deficiencies or to prevent significant harm to the children."  



                                                                              

                    The superior court found that Jane was a child in need of aid based on her  



                                                                                                             

conduct of running away and the behaviors she engaged in when on the run:  "If she  



                                                                                                          

were to be turned loose, she would be on the run again in a weekend. . . . [S]he's run so  



          

many  times that I've been involved plus . . . her own threats that she would."   The  



superior court also said it would be surprised if Jane "stayed [in her placement] three  



                                                                                          

days after hearing a decision that OCS was out of her life."  The court found that OCS  



had made active efforts to prevent the breakup of the family, but the court expressed  



                                              

some doubt about whether the family would be reunified before Jane turned 18, saying:  



                    [T]here have been a lot of efforts and they have been active  

                                                                             

                    in trying to provide remedial services, both to the family and  

                                                                           

                    to the girl individually to help them mature and to develop  

                    into   a   position   where   they   can   be   reunified   at   some  



                                                             -9-                                                        6832
  


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

                                                                                                    

                     time. . . .[B]ecause of the time frames involved, because of  

                                                                                       

                     the DJJ involvement, I believe that that is probably not going  

                                                                                                           

                     to happen before she turns 18, but at the same time, I have  

                                                                       

                     long range hopes that they can deal with each other as adults  

                     in a way that is healthy.  



                                                                                                         

                     Kyle appeals, arguing that OCS did not make active efforts to prevent the  



family's breakup and that AS 47.10.011(5) is unconstitutional as applied to him.  



III.       STANDARD OF REVIEW  



                     The question whether OCS made active efforts to provide remedial services  



                                                                                                        

and rehabilitative programs designed to prevent the breakup of an Indian family is a  



                                                      14  

            

mixed  question  of  law  and  fact.                        We  review  factual  findings  for  clear  error  and  



                                               15  

conclusions  of law de novo.                       A finding is clearly erroneous if we are "left with a  



                                                                                                                           

definite and firm conviction that a mistake has been made after a review of the entire  



                                                                                                     16  

record in the light most favorable to the party prevailing below."                                        We review issues of  



                                                                                                

statutory and constitutional construction de novo, adopting the rule of law that is most  



                                                                                 17  

persuasive in light of precedent, reason, and policy.                                In CINA cases, we review issues  



                                                                                  18  

that were not raised in the trial court for plain error.                              



           14        Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                       ,  



291 P.3d 957, 961 (Alaska 2013) (citing Lucy J. v. State, Dep't of Health & Soc. Servs.,                                

Office of Children's Servs., 244 P.3d 1099, 1111 (Alaska 2010)).  



           15        Id. (citations omitted).  



           16  

                                                              

                     Lucy J. , 244 P.3d at 1111 (citations and internal quotation marks omitted).  



           17  

                                                                          

                     Smart v. State, Dep't of Health & Soc. Servs., 237 P.3d 1010, 1014 (Alaska  

2010) (quoting Pepper v. Routh Crabtree, APC , 219 P.3d 1017, 1020 (Alaska 2009)).  



           18  

                                                     

                     Lucy J. , 244 P.3d at 1111 (citing Adoption of L.E.K.M., 70 P.3d 1097, 1100  

(Alaska 2003)).  



                                                                 -10-                                                            6832
  


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

IV.	      DISCUSSION  



          A.	       Kyle Waived His Argument That The Statute Is Unconstitutional As  

                                                                         

                   Applied To Him.  



                    Kyle challenges the constitutionality of AS 47.10.011(5) as applied to him  

                                                                          



because it permits the State to take legal custody of his child without any requirement  



                                                          19  

that the State show he is an unfit parent.                    He concedes he did not raise this issue in the  



trial  court,  but  he  nonetheless  argues  that  this  court  should  apply  its  independent  



judgment to his constitutional argument.  He contends that the trial court's finding that  



                                                 

Jane was in need of aid without any predicate finding of parental unfitness was plain  



error because the finding affected a substantial right and was prejudicial.  The State  



                                                                                                                

argues that Kyle waived the issue by failing to raise it below, maintains there is no plain  



error, and contends the statute is constitutional in any event.  



                    "[P]lain error exists in a CINA case where 'an obvious mistake has been  



                                                                                              20 

                                                                                                  Kyle argues that the  

made which creates a high likelihood that injustice has resulted.' " 



                                                                                                                     

trial court's finding that Jane was in need of aid without finding that he was unfit was an  



                                                                                                  

"obvious injustice" because it "runs contrary to the presumption of parental fitness and  



the  constitutional  right  to  parent."    He  contends  an  adjudication  with  no  finding  of  



          19	      AS 47.10.011 provides that  



                                                                                

                   the court may find a child to be a child in need of aid if it  

                    finds by a preponderance of the evidence that the child has  

                   been subjected to any of the following:  



                    . . . .  



                    (5)  the  child  is  habitually  absent  from  home  or  refuses  to  

                    accept available care and the child's conduct places the child  

                                                         

                    at substantial risk of physical or mental injury[.]  



          20       Lucy J. , 244 P.3d at 1118 (quoting Marcia V. v. State, Office of Children's  

                                 

Servs., 201 P.3d 496, 502 (Alaska 2009)).  



                                                            -11-	                                                     6832
  


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

                                                                                   

parental unfitness can set the stage for termination of parental rights of a fit parent, which  



                                                                       

would be plainly unconstitutional. The State responds that the case was not a termination  



                                                                                         

case and that AS 47.10.088, the involuntary-termination statute, independently protects  



parents' rights by requiring a showing of parental misconduct.  



                                                                                                                

                     The trial court's failure to consider the possibility that the statute might be  



                                                                          

unconstitutional was not an obvious mistake.  Kyle argues on appeal that the statute is  



                                                                                                           21  

unconstitutional  as  applied  to  him,  not  that  it  is  facially  invalid.                                    An  as-applied  



challenge requires evaluation of the facts of the particular case in which the challenge  



          22  

arises.          We  made  this  distinction  in  State,  Department  of  Revenue,  Child  Support  



                                                                                  

Enforcement Division v. Beans , where we observed that a statute permitting the State to  



suspend the driver's license of child support obligors who were delinquent "would be  



                                                                       

unconstitutional as applied" if the delinquent parent was unable to pay child support, but  



                                                                                                                            23  

                                                                                                                                 Kyle  

would be constitutional in cases of parents who were capable of paying support. 



never asked the trial court to examine the facts of his case and consider whether the  



                                                                                                  

statute as applied to his facts was unconstitutional.  He  did  not argue that the State  



                                                                                                                        

needed to show that he was unfit in order to find Jane a child in need of aid, so the trial  



                                                                           

court did not make factual findings related to a constitutional challenge.  The trial court  



was not asked to make findings about Sybil's physical abuse of Jane, so it did not do so,  



           21        See State v. Am. Civil Liberties Union of Alaska                         , 204 P.3d 364, 372 (Alaska  



2009) (quoting State, Dep't of Revenue, Child Support Enforcement Div. v. Beans                                                 , 965  

P.2d  725,  728  (Alaska  1998))  (discussing  difference   between  facial  and  as-applied  

constitutional challenges).  



           22  

                                                                 

                     Id. ; see also Phelps-Roper v. Troutman , 712 F.3d 412, 416-17 (8th Cir.  

2013)  (remanding  as-applied  challenge  to  district  court  for  development  of  factual  

record).  



           23        Beans , 965 P.2d at 727-28.  



                                                                 -12-                                                           6832
  


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

but the trial court recognized that Jane's diagnosis of posttraumatic stress disorder and                               



the  pending  criminal  charges  against  Sybil  supported  an  inference   that  Sybil  had  



physically abused Jane, as Jane reported.  Moreover, Jane's first incident of running   



away occurred when Sybil moved back into the house over OCS's objection.  Kyle's  



closing argument at trial did suggest that the legislature only intended the State to take  



custody when "there are severe parenting deficiencies or to prevent significant harm to  



                                                                                                                                       

the children," but this argument, which was not raised on appeal, was made only in the  



context  of  an  argument  that  DJJ  and  OCS  should  not  have  dual  custody;  he  never  



                                                 

mentioned the Constitution or due process.  Because Kyle did not raise this constitutional  



                                                                      

argument in the trial court, permitting it to make factual findings related to the challenge,  



and has not shown plain error, his constitutional argument has been waived.  



            B.	         The Trial Court Did Not Err In Deciding That The State Made Active  

                        Efforts To Prevent The Breakup Of This Indian Family.  



                        Pursuant  to  AS  47.10.086(a),  OCS  must,  in  most  cases,  make  "timely,  



reasonable   efforts   to   provide   family   support   services   to   the   child   and   to   the  



parents . . . that are designed to prevent out-of-home placement of the child or to enable  



       

the safe return of the child to the family home, when appropriate, if the child is in an out- 



                                                                                                                            

of-home placement."  In an ICWA case, 25 U.S.C.  1912 requires that OCS make active  

                                                     24   "[T]he 'active efforts' requirement of ICWA is more  

                                                                                                                               

efforts at family reunification.  

demanding than the 'reasonable efforts' requirement of AS 47.10.086."25  We review the  

                                                                                                                                        



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



Servs., 222 P.3d 841, 849 (Alaska 2009) (citing 25 U.S.C.  1912(d) (2006)).  



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



Servs., 134 P.3d 343, 347 n.18 (Alaska 2006).  



                                                                         -13-	                                                                       6832  


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

                                                                                                              26  

decision that OCS made active efforts "on a case-by-case basis."                                                   "As opposed to  



                                                                                             

passive efforts such as simply developing a plan for the parent to follow, active efforts  



                                                                                                       

require that the state actually help the parent develop the skills required to keep custody  



                           27  

                                                                                                      

of the children."               We consider "the State's involvement in its entirety" in assessing  



                                                      28  

whether the State met its burden.                          



                                                                                                      

                      Kyle argues that OCS failed to make reasonable, active efforts in this case.  



                                                                                                      

He argues that the efforts directed at Jane were unreasonable overall and that the State  



                                                                                     

did not make active efforts directed at him.  OCS responds mainly by discussing the  



services the State provided to Jane, but it also notes that OCS paid for Kyle's counseling  



and brought him to Alaska for an in-person visit with Jane.  



                                                                                           

                      Kyle does not contest on appeal that Jane was in need of aid as a result of  



                                      

her running away and the behavior she displayed when she ran away.  Jane ran away  



                                                                                                                             

repeatedly.    Kyle  agreed  at  the  emergency  probable-cause  hearing  that  she  had  a  



                                                                 

substance abuse problem and testified that she had tested positive for marijuana every  



                                                                               

time she had been tested.  Jane also had mental health diagnoses and needed treatment  



                                                                                     

for her mental conditions:  She was diagnosed with depression and posttraumatic stress  



disorder,  which  the  mental  health  clinicians  attributed  to  Sybil's  having  abused  her  



                                                                                  

throughout the time Sybil lived with Kyle.  Sybil remained in Kyle's home, and Jane's  



                                                                                                            

counselor testified that returning Jane to Kyle's home would put Jane at risk of relapse  



           26         Doe v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                        , 272  



P.3d 1014, 1020 (Alaska 2012) (citing A.A. v. State, Dep't of Family & Youth Servs.                                                   , 982  

P.2d 256, 261 (Alaska 1999)).  



           27         Dashiell R. , 222 P.3d at 849 (citation omitted).  



           28  

                                                                                                                                   

                      Doe , 272 P.3d at 1020 (quoting Jon S. v. State, Dep't of Health & Soc.  

                                                                                                     

Servs.,  Office  of  Children's  Servs.,  212  P.3d  756,  763-64  (Alaska  2009))  (internal  

quotation marks omitted).  



                                                                    -14-                                                              6832
  


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

and running away because Jane did not feel safe.  One counselor testified that Jane had  



                                                                                                                        

been traumatized by the domestic violence between Sybil and Kyle.  Jane's mental health  



                                                                            

and substance abuse issues, her statements that she would run away if returned to Kyle's  



home, the risky behaviors Jane engaged in while on the run, and the trial court's own  



experience with her repeatedly running away from placements were the reasons the court  



                                                                           

found her to be in need of aid.  The court was concerned that Jane would "sabotage her  



                                                                               

own progress to avoid going home" if OCS did not remain involved in her case, and it  



found that an out-of-home placement was necessary to prevent imminent harm to her.  



                      Kyle's  argument  on  appeal  centers  on  OCS's  emphasis  on  providing  



                                                                 29 

                                                                     When a child is placed in state custody, OCS  

services to Jane rather than to the family. 



                                                                                                                                    30  

                                                                                                                                         In  

must address the particular family needs that caused the child to be in need of aid. 



                                                                                               

Jane's case, those needs were related to her running away, and her associated substance  



abuse and mental health issues.  The trial court found at the adjudication hearing that  



                                                                                     

Jane was in need of aid because of her behavior - her repeated running away and the  



                                         

activities she engaged in when she ran away, particularly her substance abuse.  Because  



                                                                                                                        

Jane's behavior was the cause of her adjudication as a child in need of aid, the State was  



                    

justified in concentrating its efforts on addressing Jane's problems, even if that meant  



           29         Kyle also contends that Jane's "behavior would not have reached a point   



where she needed to reside in FYF" if OCS had not removed her from his care.  But this     

assertion is speculative.  There is simply no way to know how Jane would have behaved               

had she not been removed from the home.  



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



                             

Servs., 162 P.3d 1239, 1245 (Alaska 2007) ("Our starting point for evaluating OCS's  

                                                                                                  

reunification efforts is the identification of the problems that caused the child or children  

to be in need of aid.").  



                                                                   -15-                                                             6832
  


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

                                                              31  

delaying her reunification with Kyle.    Jane's therapist at Hanson House did not begin  



                                                      

family therapy until phase two of the program in order to "establish[] a strong rapport  



                                                                                                 

with the individual client" before bringing the family in.  At the time of the adjudication  



trial, Jane was "midway through phase one" of a four-phase program.  Because of Jane's  



                                                                                             

age and her involvement with DJJ, the trial court noted that reunification was "probably  



                                                          

not going to happen before [Jane] turns 18," but the court also thought "it [was] critical  



                                                                                                                         

to her survival" that she remain in OCS custody and receive the services she was getting  



                                 

at Hanson House. This finding is supported by the record:  Jane's therapist testified that  



Jane was at extreme risk if she was removed from the program and returned to Kyle's  



custody.  



                                                                                      

                       The State has an interest in protecting children when they place themselves  



                                                                                                    32  

at  serious  risk  of  harm,  even  when  a  parent  is  blameless.                                        Jane  placed  herself  "at  



                                                                                                                        33  

substantial risk of physical or mental injury" whenever she ran away.                                                        Daniels and  



                                                                 

Havrilek  testified  that  Jane  not  only  abused  a  number  of  illegal  drugs,  particularly  



marijuana, but also associated with "dangerous people" and engaged in risky behavior  



while on the run.  According to Havrilek, during the time Jane was out of Dora's home  



in  April  and  May,  Jane  "reported  having  a  lot  of  contact  with  weapons"  including  



shooting them and having one in her possession when she was arrested in May.  Daniels  



           31         We reiterate that we evaluate active efforts on a case-by-case basis.                                              Doe ,  



272 P.3d at 1020 (citing A.A. , 982 P.2d at 261).                                 Our analysis could be different if Jane     

were younger or if this were a termination trial.  



           32         See L.A.M. v. State, 547 P.2d 827, 834 (Alaska 1976) (identifying State's  



                                                                              

interest in protecting runaways).  See also In re Sumey, 621 P.2d 108, 110-11 (Wash.  

                                                                                                           

1980) (discussing balance between parents' rights to custody of child and State's interest  

in protecting children's best interests).  



           33         AS 47.10.011(5).  



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

                                                                                

testified that Jane "seem[ed] to be very interested . . . in boys who are a little older than  



                                                                       

she is who are involved in . . . substance abuse, with drugs, and . . . having unprotected  



                                                                   

sex."  Jane was expelled from one school for her behavior and was far enough behind in  



                                                                                                              

getting credits that she was not likely to graduate on time. The adjudication decision was  



                                                         

a determination that Jane needed to be in the custody of the State for her own protection;  



                                                                             

the court was not considering termination of Kyle's parental rights, a much more drastic  



                   34  

intervention.          The State's efforts in their totality, including those made by DJJ, were  



active efforts intended to address the problems that made Jane a child in need of aid.  



There is ample support for finding that the State made efforts to assist Jane in treating  



both her mental health conditions and her substance abuse.  The trial court correctly  

                                                                 



concluded that these efforts met the active efforts requirements of ICWA.  



V.        CONCLUSION  



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



adjudicating Jane a child in need of aid.  



          34  

                                                                                                    

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

                                                                                                          

Servs., 289 P.3d 924, 930 (Alaska 2012) ("[W]e bear in mind at all times that terminating  

parental rights is a drastic measure." (quoting  Christina J. v. State, Dep't of Health &  

Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1104 (Alaska 2011)) (internal  

quotation marks omitted)).  



                                                             -17-                                                           6832  

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