Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


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  



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-----------------------


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


                                                       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  



                                                                       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                                                                                


                       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  


                                                                       -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  


                                                                       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  


          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  


(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  


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-----------------------



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.  



                    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  


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  



                    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.  



                     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.  


                     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  



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


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  


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  


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


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).  



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



                     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)).  



                     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-----------------------


          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  


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  


                                                                                                  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  


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  


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  



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).  



                     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  


           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-----------------------


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  



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


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).  



                      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  


                                                                     When a child is placed in state custody, OCS  

services to Jane rather than to the family. 



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-----------------------


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  



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


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


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).  

                                                                     -16-                                                                6832

----------------------- 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  


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.  



                    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  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights