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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bill S. v. State, Dept. of Health & Social Services, Office of Children's Services (2/15/2019) sp-7335

Bill S. v. State, Dept. of Health & Social Services, Office of Children's Services (2/15/2019) sp-7335

          Notice:    This  opinion   is  subject   to  correction  before  publication   in   the  PACIFIC  REPORTER.  

          Readers  are r   equested  to  bring  errors to the attention  of  the  Clerk  of  the  Appellate C  ourts,  

          303  K  Street, Anchorage, Alaska  99501, phone   (907)  264-0608, fax   (907)  264-0878,  email  

          corrections@akcourts.us.  



                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



BILL  S.  and  CLARA  B.,                                     )  

                                                              )     Supreme  Court  Nos.  S-16998/17002  

                             Appellants,                      )  

                                                                                                                                

                                                              )     Superior   Court   Nos.   3ST-15-00001/  

                                                                

                                                              

          v.                                                                   

                                                               )    00002 CN  

                                                              )  

                                    

STATE OF ALASKA, DEPARTMENT                                                            

                                                              )     O P I N I O N  

                                                               

OF HEALTH & SOCIAL SERVICES,                                      

                                                               )  

                                                               

                                                                                                          

OFFICE OF CHILDREN'S SERVICES,   )                                  No. 7335 - February 15, 2019  

                                                              )
  

                             Appellee.                        )
  

                                                              )
  



                                                                                                    

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

                                                                                                      

                   Judicial District, Anchorage, William F. Morse, Judge.  



                                                                                                

                   Appearances:              Alexander         T.   Foote,   Assistant   Public  

                                                                                                       

                   Advocate, and Chad Holt, Public Advocate, Anchorage, for  

                                                                                                 

                   Appellant  Bill   S.            Megan  R.  Webb,  Assistant  Public  

                                                                                           

                   Defender, and Quinlan Steiner, Public Defender, Anchorage,  

                                                                                                 

                   for  Appellant  Clara  B.                Mary  Ann  Lundquist,  Senior  

                                                                                           

                   Assistant Attorney General, Fairbanks, and Jahna Lindemuth,  

                                                                                       Lisa   Wilson,  

                   Attorney  General,  Juneau,  for  Appellee.  

                   Assistant  Public  Advocate,  Anchorage,  Guardian  Ad  Litem.  



                   Before:   Bolger,  Chief  Justice, Winfree,   Stowers,  Maassen,  

                   and  Carney,  Justices.  



                    STOWERS,  Justice.  


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

I.          INTRODUCTION  



                         The superior court terminated a mother's and a father's parental rights to  

                                                                                                                 



their two Indian children. The parents appeal, arguing the superior court erred in finding,  

                                                                                                                                                  



by clear and convincing evidence, that OCS made active efforts to prevent the breakup  

                                                                                                                                                 



of the Indian family.  Because there is insufficient evidence to support an active efforts  

                                                                                                                                                    



finding under a clear and convincing evidence standard, we reverse the superior court's  

                                                                                                                                                   



active efforts finding, vacate the termination order, and remand for further proceedings.  

                                                                                                                                         



II.         FACTS AND PROCEEDINGS  

                                         



            A.           The Family And OCS Involvement  

                                                                      

                         Bill and Clara are the parents of Noah and Olwen,1 ages 12 and 5 at the time  

                                                                                                                                                        



of the termination trial.  Noah and Olwen are Indian children within the meaning of the  

                                                                                                                                                          



Indian Child Welfare Act (ICWA) based on their affiliation with the Aleut Community  

                                                                                                                                          

of St. Paul Island (the Tribe).2   Bill and Clara have a lengthy history of alcohol abuse and  

                                                                                                                                                          



domestic violence. Noah and Olwen have suffered primarily through neglect and mental  

                                                                                                                                                    



injury from exposure to their parents' conduct.  While Bill's and Clara's violence is  

                                                                                                                                                             



typically directed at each other or other family members, there are some reports of  

                                                                                                                                                            



alleged physical abuse of Noah.  

                                                 



                         The family lived on St. Paul Island, a small, remote community in the  

                                                                                                                                                          

Bering Sea.3   Noah and Olwen were removed from their home in August 2015, and the  

                                                                                                                                                           



            1            We use pseudonyms to protect the family's privacy.                               



            2            See   25 U.S.C.  1903(4) (2012) (" 'Indian child' means any unmarried                                              



person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is                                                                     

eligible for membership in an Indian tribe and is the biological child of a member of an  

                                                                                                                                                            

Indian tribe.").   



            3            See    DEP 'T          OF     COM.,         COMMUNITY,    AND    ECON.                           DEV.,	        DIVISION   OF  



                                                                                                                                       (continued...)  



                                                                             -2-	                                                                     7335
  


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

Office of Children's Services (OCS) filed an emergency petition to adjudicate them as                                                                                              



children in need of aid based on repeated violence and alcohol abuse in the home.                                                                                             The  



Tribe supported OCS's intervention.  The children were first placed with a relative on                                                                           

                                                                                                                              4 but they were later moved  

the island, in accordance with ICWA placement preferences,                                                                                                               



to another relative's home in Wasilla after the on-island placement was unsuccessful.  

                                                                                                                                                                                         



Noah and Olwen were adjudicated as children in need of aid in February 2016 due to  

                                                                                                                                                                                   

exposure to domestic violence and substance abuse in the home.5  

                                                                                                                            



                            Prior  to the Child  in  Need of Aid  (CINA)  adjudication  hearing,  OCS  

                                                                                                                                                                            



communicated with Clara regarding the changes she needed to make to address her  

                                                                                                                                                                                



substance abuse and domestic violence issues.  But OCS did not finalize a case plan for  

                                                                                                                                                                                 



the family until two days before the hearing - more than five months after the children  

                                                                                                                                                                      



were removed from the home.  Clara participated in a substance abuse assessment in  

                                                                                                                                                                                   



October  2015,  but  she  did  not  actively  engage  in  follow-up  treatment.                                                                                     Bill  was  

                                                                                                                                                                              



              3             (...continued)  



C O M M U N I T Y                      A N D            R E G I O N A L                  A F F .,             Communit y:                            S a i n t           Pa u l ,  

https://www.commerce.alaska.gov/dcra/DCRAExternal/community/Details/1f2a29c3  

                                                                                                                  

-65c7-4e5f-a83b-807f17a3ab25 (last visited Oct. 17, 2018).  



              4  

                                                                                                                                                                     

                            25 U.S.C.  1915(b) (ICWA placement preferences include: "(i) a member  

                                                                                                                                                                     

of the Indian child's extended family; (ii) a foster home licensed, approved, or specified  

                                                                                                                                                                                  

by the Indian child's tribe; (iii) an Indian foster  home  licensed or approved by an  

                                                                                                                                                                                  

authorized non-Indian licensing authority; or (iv) an institution for children approved by  

                                                                                                                                                                                   

an Indian tribe or operated by an Indian organization which has a program suitable to  

                                                   

meet the Indian child's needs.").  



              5             See AS 47.10.011(8)(B)(iii) (children at substantial risk of "mental injury"  

                                                                                                                                                                         

due  to  repeated  exposure  to  domestic  violence);  AS  47.10.011(10)  (children  at  

                                                                                                                                                                                  

"substantial risk of harm" due to parent's substance abuse).  

                                                                                                               



                                                                                         -3-                                                                                 7335
  


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

incarcerated intermittently during this time, and it is unclear if he ever completed a                                                                                                

substance abuse assessment.                                  6  



                             During the adjudication hearing the superior court issued warnings to both  

                                                                                                                                                                                



Clara and OCS regarding the inadequacy of their actions to date. The court warned Clara  

                                                                                                                                                                              



that she needed  to "get alcohol treatment so  that [she  could] avoid exposing  [her]  

                                                                                                                                                                              



children to tremendous danger," and that if she did not "get into treatment soon and  

                                                                                                                                                                                 



begin it and do well, . . . then it's entirely likely that [her] parental rights [would] be  

                                                                                                                                                                                    



terminated."  The court told OCS that it did not "see a whole lot of active efforts" and  

                                                                                                                                                  



it was "not all that impressed with the quality of the efforts."  While the court found "by  

                                                                                                                                                                                  



the slimmest of margins that [OCS] . . . made active efforts," it made "clear that this is  

                                                                                                                                                                                      



as little over the line of active efforts as you can get while crossing the line."  

                                                                                                                                                         



                             Despite these warnings, none of the parties appear to have remedied their  

                                                                                                                                                                                



efforts.  For its part, OCS facilitated regular family contact via phone calls and provided  

                                                                                                                                                                       



transportation  and  lodging  for  in-person  visits.                                                         OCS  also  provided  mental  health  

                                                                                                                                                                           

                                                           7 while they were placed in Wasilla, but in January 2017 the  

services to Noah and Olwen                                                                                                                                                         

                                              



children were placed with a different relative in Juneau and did not receive services for  

                                                                                                                                                                                   



almost a year due to waitlist issues.  OCS contracted with the Tribe to provide on-island  

                                                                                                                                                                      



              6              OCS's petition for termination of parental rightsstates                                                          that Bill participated     



in a substance abuse assessment, but there is not an assessment in the record and the OCS                                                                                      

caseworker   testified   that   she   did   not   "specifically   recall   him   obtaining   an   alcohol  

assessment."    Bill testified that he did "an assessment" through the Tribe but did not                                                                                          

recall being offered a substance abuse evaluation during his incarceration.                                                       



              7              Olwen was diagnosed with post-traumatic stress disorder and experienced  

                                                                                                                                                                

frequent  behavioral  issues.                                   Noah  was  described  as  a  "parentified"  child  who  felt  

                                                                                                                                                                                 

responsible for caring for Olwen.  He also bullied his foster brother, which threatened  

                                                                                   

the stability of the children's later placement in Juneau.  

                                                                                                       



                                                                                          -4-                                                                                 7335
  


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

services to Bill and Clara, but there is no documentation in the record of how active or                                                                                                                                                                                                                   



consistent those services were.                                                          



                                               Bill and Clara, for their part, both attended "brain trauma" and "healthy                                                                                                                                                            



relationships" classes in March 2016.                                                                                                  Clara applied to one inpatient treatment facility,                                                                                              



but the facility deemed her to be inadequately motivated and declined to accept her into                                                                                                                                                                                                             



the program.                                   But throughout the time period of their children's removal, Bill and Clara                                                                                                                                                                      



continued to engage in significant domestic violence and alcohol abuse.                                                                                                                                                                                          Accordingly,  



OCS petitioned to terminate their parental rights in August 2017.                                                                                                                                                  



                        B.                      The Termination Trial And The Superior Court's Decision                                                                                                                                                                                                               



                                                The termination trial was held in October 2017.                                                                                                                         To demonstrate its efforts                                            



at family reunification, OCS presented testimony from the OCS supervisor for St. Paul                                                                                                                                                                                                              



Island, who also worked intermittently as the primary caseworker for the family.                                                                                                                                                                                                            Philip  



Kaufman   testified  as   an   ICWA   expert   witness   in   support   of   OCS's   position   that  



"continued custody of the child by the parent . . . is likely to result in serious emotional                                                                                                                                                                                   

                                                                                                                         8       The court also heard testimony from the chief of  

or physical damage to the child."                                                                                                                                                                                                                                                                          



police for St. Paul Island, one of the children's foster parents, and from Bill and Clara.  

                                                                                                                                                                                                                                                                                                                      



OCS admitted into evidence the family case plan and contact plan, criminal and medical  

                                                                                                                                                                                                                                                                                       



records for Bill and Clara, and medical and mental health records for Olwen.  

                                                                                                                                                                                                                                                      



                                               After hearing witness testimony, the superior court found "that neither  

                                                                                                                                                                                                                                                                                         



parent had remedied the conduct that placed each child at substantial risk of harm[,] . . .  

                                                                                                                                                                                                                                                                                                            



that termination of parental rights was in the best interest of each child[,] . . . [and] that  

                                                                                                                                                                                                                                                                                                     



continued  custody  of  either  child  by  either  parent  was  likely  to  result  in  serious  

                                                                                                                                                                                                                                                                                       



emotional damage to the child." The superior court deferred making a finding on OCS's  

                                                                                                                                                                                                                                                                                           



                        8  

                                                                                       

                                               25 U.S.C.  1912(f).  



                                                                                                                                                     -5-                                                                                                                                                        7335  


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

                                                                                                                          

active efforts to "prevent the breakup of the Indian family," instead opting to further  



                                                                                                      

review the evidence and the parties' arguments before reaching a decision.  



                                                                                                                               

                     In January 2018 the superior court issued a written order concluding that  



                                                                                                         

active efforts had been made and granting the petitions to terminate the parental rights  



                                                                                                                             

of both parents.  The court made a number of findings related to active efforts by OCS  



             

and the Tribe:  



                                                                                                      

                              Fromtheinitial removal both parents exhibited serious  

                                                                                                      

                    problems with alcohol, marked by regular episodes of mutual  

                                                                                                      

                    domestic violence, nearly always when intoxicated.  [Clara]  

                                                                                                          

                    and [Bill]would occasionallysuperficiallyacknowledgetheir  

                                                                                                   

                    problems, but would soon return to longer periods of denial  

                            

                    and relapse.  



                                                                                                             

                              Both parents lived in St. Paul for most of the period of  

                                                                                                     

                    removal,         although        [Bill]   was        incarcerated   off   island  

                                                                                                          

                    intermittently.  At the insistence of [OCS], and with the help  

                                                                                                    

                    of  tribal  representatives,  both  [parents]  obtained  alcohol  

                                                                                                  

                    assessments on St. Paul. But there are only limited treatment  

                                                                                                    

                    resources on the island.  There is only an outpatient program  

                                                                                                          

                    available.          Each  parent  would  attend  sessions  [of  the  

                                                                                                 

                    outpatient program]intermittently. Neither parentcompleted  

                                                                                                  

                    the program and the sessions that each did attend had little  

                                               

                    impact on either parent.  



                                                                                                  

                              Although noassessment calledfor inpatient treatment,  

                                                                                                         

                    the  OCS  social  worker  tried  to  convince  [Clara]  that  

                                                                                                      

                    outpatient  treatment  was  not  sufficient.                         [Clara]  would  

                                                                                               

                    occasionally  express  a  willingness  to  enter   residential  

                                                                                                         

                    treatment.   She did apply to one residential program (Old  

                                                                                                         

                    Minto); however, she told the provider that she was only  

                                                                                                   

                    willing to enter the program to satisfy OCS.  The program  

                                     

                    found her to be inadequately motivated.  At other times she  

                                                                                                        

                    conditioned her enrollment in residential treatment on [Bill]  

                                                                                                          

                    or the children attending with her.  [OCS] reasonably was  

                                                                                                             

                    unwilling  to  pull  the  children  from their  foster  homes  or  

                                                      

                    disrupt their ongoing schooling.  



                                                                -6-                                                         7335
  


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

                                                                                                     

                              While        [Bill]      was      incarcerated          he      was      given  

                                                                                                           

                    opportunities  to  obtain  treatment  for  alcohol  abuse.                             He  

                                                                                                           

                    would  either  decline  or  put  forth  so  little  effort  that  the  

                                                                                                

                    treatment had little impact.  Both OCS and tribal authorities  

                                                                                                            

                    visited   [Bill]   while   he   was   incarcerated   in   hopes   of  

                                                                                                  

                    convincing him to engage in needed and available treatment  

                                                                                                             

                    while in jail.  Those efforts were fruitless.  They offered to  

                                                                               

                    have [Bill] assessed while in jail.  He declined.  



                                                                                                     

                               OCS and tribal authorities encouraged both parents  

                                                                                                           

                    and  especially  [Clara]  to  attend  counseling  regarding  the  

                                                                                                      

                    impact of domestic violence on children. There were limited  

                                                                                           

                    classes  available  on  St.  Paul.                    However,  both  parents  

                                                                                                             

                    continued to deny that domestic violence was a problem in  

                                                                                                             

                    their  relationship  or  that  either  child  might  be  at  risk  of  

                                                                                                         

                    physical or emotional harm from being the target of such  

                                                         

                    violence or witnessing it.  



                                                                                                         

                              Neither  parent  was  willing  to  move  from  St.  Paul  

                                                                                                         

                    despite OCS and tribal authorities recommending that each  

                                                                                           

                    do  so  in  order  to  gain  access  to  greater  rehabilitative  

                                                                                                    

                    resources elsewhere. The children were placed with relatives  

                                                                                                           

                    in Wasilla and Juneau after OCS removed them from the  

                                                                                                                  

                    parental homes.  OCS flew each parent to visit the children.  

                                                                                                        

                    For periods [Clara] was visiting monthly. At one point while  

                                                                                                

                    the children were in Wasilla, the parents were so intoxicated  

                                                                            

                    at a hotel that in-person visits were suspended.  



                                                                                                      

                              Both OCS and the tribe had worked with both parents  

                                                                                                         

                    to get them to stop or reduce their drinking "for years" even  

                                                                                                        

                    beforetheremoval in 2015. Although [the caseworker]could  

                                                                                                       

                    not  identify  exact  dates,  she  recalled  OCS  and  tribal  

                                                                                                   

                    involvement with the parents for alcohol abuse and domestic  

                                                                                             

                    violence   since   [Noah]   was   a   toddler   and   during   the  

                                                                

                    pregnancy with [Olwen] in 2012.  



                                                                                                                               

                    The superior court also expressed serious doubt about OCS's case and  



                                                                                                                               

noted it "left the [termination] hearing concerned that it would not be able to find that  



                                                                                                                     

[OCS] had proven active efforts."   The court was "underwhelmed by the quality of  



                                                                -7-                                                         7335
  


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

                                                                                                                               

testimony . . . offered about the efforts that OCS and the tribe had made to help the  



                                                                                                                             

parents." The court explained there was "very little detail about when those efforts were  



                                                                                                                                     

made" and there were "only vague descriptions of what the tribal authorities had done."  



                                                                                                                               

Recognizing the difficulty of remotely supervising OCS efforts in St. Paul and the  



                                                                                                                

"limited services" available on the island, the court noted it is therefore "particularly  



                                                                                                                              

important that the witness [for OCS] has researched the OCS records and thus [is]  



                                                                                                                          

prepared  to  describe  the  services  that  were  offered."                             The  court  stated  its  initial  



                                                                                                                        

impression "was that [OCS] made a rather lackadaisical effort" and "put on a skeletal  



                                                

case about [its] required active efforts."  



                                                                                                                          

                    Ultimately, however, the superior court concluded OCS met its active  



                                                                                                                        

efforts burden, due in large part to "the consideration the Court is to give to the parents'  



                                                                                                                               

demonstration of an unwillingness to change or participate in rehabilitative efforts." The  



                                                                                                                         

court explained both parents exhibited a "consistent and extremely damaging" pattern  



                         

of behavior for years:  



                                                                                                         

                    They abuse alcohol several times a month and engage in very  

                                                                                              

                    serious  domestic  violence  against  each  other  and  family  

                                                                                           

                    members.  They deny that there is a problem.  They decline  

                                                                                                            

                    alcohol treatment.  They refuse to engage in any classes or  

                    counseling about domestic violence.  They have done little,  

                                                                                                           

                    if anything, to change their conduct, even though [OCS] has  

                                                                                                                 

                    removed their children from their homes for over two years.  



                                                                                                                                 

The court concluded that "[u]nder these tragic circumstances" OCS met its burden to  



                                                                                                                              

show by clear and convincing evidence "active efforts to provide remedial services and  



                                                                                              

rehabilitative programs to help each parent address his or her behavior."  



                                                                                                                                     

                    The court terminated Bill's and Clara's parental rights to both children.  



                                                                      

Both parents appeal the court's active efforts finding.  



                                                               -8-                                                         7335
  


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

III.         STANDARD OF REVIEW                  



                         "Whether   OCS   made   active   efforts   as   required   by   ICWA   is   a   mixed  



                                                  9  

question of law and fact."                                                                                                                                 

                                                      We review the superior court's findings of fact for clear  



                                                                                                                                                              

error, but "we review de novo whether those findings satisfy the requirements of the  



                                               10  

                                                    

CINA rules and ICWA." 



IV.          DISCUSSION  



                                                                     

             A.          Active Efforts Under ICWA  



                                                                                                                                                          

                         Pursuant to ICWA, "[b]efore terminating parental rights to an Indian child,  



                                                                                                                           

a court must find that 'active efforts have been made to provide remedial services and  



                                                                                                                                                             

rehabilitative programs designed to prevent the breakup of the Indian family and that  



                                                                                11  

                                                                                                                                                                  

these efforts have proved unsuccessful.' "                                           We conduct active efforts inquiries "on a  



                                                                                                                                                             

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



                               12  

                                                                                                                                                         

passive efforts."                   Generally, "active efforts will be found when OCS 'takes the client  



                                                                                                                                                         

through the steps of the plan rather than requiring that the plan be performed on its own,'  



             9           Caitlyn E. v. State, Dep't of Health & Soc. Servs., Office of Children's                                              



Servs., 399 P.3d 646, 654 (Alaska 2017) (quoting                                              Pravat P. v. State, Dep't of Health &                              

Soc. Servs., Office of Children's Servs.                                  , 249 P.3d 264, 270 (Alaska 2011)).                   



             10          Id.  (quoting Philip J. v. State, Dep't of Health & Soc. Servs., Office of  

                                                                                                                                                                

Children's Servs., 314 P.3d 518, 526 (Alaska 2013)).  

                                                                                        



             11          Id.  (quoting Jon  S.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Office  of  

                                                                                                                                                                

Children's Servs., 212 P.3d 756, 760-61 (Alaska 2009)); see also 25 U.S.C.  1912(d);  

                                                                                                                                                   

25 C.F.R.  23.120(a) (2018); CINA Rule 18(c)(2)(B).  

                                                                                 



             12          Philip J., 314 P.3d at 527 (quoting A.A. v. State, Dep't of Family & Youth  

                                                                                                                                                         

Servs., 982 P.2d 256, 261 (Alaska 1999)).  

                                                                  



                                                                               -9-                                                                        7335
  


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

but not when 'the client must develop his or her own resources towards bringing [the                                                                                

plan] to fruition.' "                13  



                           In 2016 the Bureau of Indian Affairs (BIA) implemented new regulations  

                                                                                                                                                      



(the  Regulations)  related  to  the  active  efforts  requirement,  setting  a  "nationwide  

                                                                                                                                                  

definition for this critical statutory term."14                                        The Regulations took effect December 12,  

                                                                                                                                                                      



2016; as such, they were in force at the time OCS filed its August 2017 petition to  

                                                                                                                                                                       

terminate Bill's and Clara's parental rights.15                                             The Regulations define active efforts as  

                                                                                                                                                                        



"affirmative, active, thorough,  and  timely  efforts intended  primarily  to maintain or  

                                                                                                                                                                       

reunite an Indian child with his or her family."16                                                   The Regulations reaffirm that what  

                                                                                                                                                                  



constitutes active efforts is fact-dependent and that "efforts are to be tailored to the . . .  

                                                                                                                                                                          

circumstances of the case."17                                  Finally, and of critical importance to this appeal, the  

                                                                                                                                                                     



                                                                                                                                                                    18  

Regulations state that "[a]ctive efforts must be documented in detail in the record."                                                                                    

                                                                                                                                                     



              13          Id.   (alteration in original) (first quoting                                     N.A. v. State, Div. of Family &                             



 Youth Servs.             , 19 P.3d 597, 602-03 (Alaska 2001); and then quoting                                                           Lucy J. v. State,       

Dep't of Health &Soc.                         Servs., Office of Children's Servs.                               , 244 P.3d 1099, 1114 (Alaska                

2010)).  



              14           Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,790 (June  

                                                                                                                                                                 

 14, 2016) (codified at 25 C.F.R. pt. 23).  

                                                                        



              15          Id. at 38,778; 25 C.F.R.  23.143 ("None of the provisions of this subpart  

                                                                                                                                                             

affects a proceeding under State law for . . . termination of parental rights . . . that was  

                                                                                                                                                                    

initiated prior to December 12, 2016 . . . .").  

                                                                                 



              16           25 C.F.R.  23.2.  

                                                   



              17          Id. (including a list of 11 examples of what active efforts may include).  

                                                                                                                                                       



              18           25 C.F.R.  23.120(b).  

                                                   



                                                                                  -10-                                                                           7335
  


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

                                         Bill   and   Clara   argue   OCS's   evidence   was   too   "vague"   and   "over  



                                                                                                                                                                                                                                   19  

generalized" to demonstrate active efforts by                                                                                         clear andconvincing                                            evidence.                                        

                                                                                                                                                                                                                                         Weagree.  



                                                                                                                                                                                                                                                                           

                    B.	                  It  Was  Error  To  Find  By  Clear  And  Convincing  Evidence  That  

                                                                                                                                

                                         OCS Made Active Efforts.  



                                                                                                                                                                                                                                                 

                                         The superior court found by "clear and convincing evidence that . . . [OCS]  



                                                                                                                                                                                                                                                                  

made active efforts to provide remedial services and rehabilitative programs," based in  



                                                                                                                                                                                                                                                             

large part on Bill's and Clara's "demonstration of an unwillingness to change." Bill and  



                                                                                                                                                                                                                                           

Clara argue OCS's evidence was vague and overgeneralized and therefore not sufficient  



                                                                                                                                                                                                                                                

to  demonstrate  active  efforts.                                                                   "Whether  substantial  evidence  supports  the  court's  



                                                                                                                                                                                                                                                     

findings that the state complied with ICWA's 'active efforts' requirement . . .[is a] mixed  



                                                                                       20  

                                                                                                                                                                                                                                            

question[] of law and fact."                                                                     Bill's and Clara's argument is not based on "specific  



                                                                                                                                                                                                                                                              

factual errors [made by the superior court,] but on whether [OCS's] efforts satisfy the  



                     19                  Bill and Clara also argue the superior court inappropriately discounted the                                                                                                                                           



lapse in mental health services to Noah and Olwen during their placement in Juneau as                                                                                                                                                                            

irrelevant to the issue of active efforts.                                                                            We have previously upheld OCS's discretion to                                                                                               

prioritize which services should be provided to a family based on the specific needs of                                                                                                                                                                          

the case.                    See Denny M. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                                                               

Servs., 365 P.3d 345, 351 n.22 (Alaska 2016). OCS reasonably focused its efforts (such                                                                                                                                                                 

as they were) on addressing the issues that made Noah and Olwen children in need of                                                                                                                                                                              

aid, i.e., Bill's and Clara's domestic violence and substance abuse issues.                                                                                                                                                         We do not                

express an opinion whether the efforts toward the children were active, as we need not                                                                                                                                                                        

decide that issue at this time.                                          



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

                                                                                                                                                                                                                                                   

212 P.3d 756, 761 (Alaska 2009).  

                                                                                    



                                                                                                                              -11-	                                                                                                                      7335
  


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

                                                                                                 21  

ICWA standard.                    This presents a question of law."                                   We review conclusions of law de                             

novo, including whether the court's findings satisfy the requirements of ICWA.                                                                           22  



                                                                                                                                                        

                          1.           OCS's testimony was insufficient to demonstrate active efforts.  



                                                                                                                                                                  

                          Bill's and Clara's argument that OCS did not demonstrate active efforts by  



                                                                                                                                                              

clear and convincing evidence is based primarily on the "vague testimony" of the OCS  



                                                                                                                                                                 

caseworker.  To support its showing of active efforts, OCS admitted into evidence the  



                                                                                                                                                          

family case plan and contact plan; otherwise, OCS's demonstration of active efforts  



                                                                        

relied primarily on the caseworker's testimony.  



                                                                                                                                                                 

                          The caseworker testified that OCS involvement "was ongoing through the  



                                                                                                                                                           

[T]ribe or through OCS for quite some time prior to removal," but she could not testify  



                                                                                                                                                                 

as to the approximate date of the first report of harm.  The caseworker also could not  



                                                                                                                                                       

speak to the last time Clara participated in treatment, as the caseworker had not received  



                                                                                                                                                          

a recent report from the Tribe's treatment center.  The caseworker admitted she herself  



                                                                                                                                                            

had not spoken to Clara about case planning in "quite some time."  Similarly, when  



                                                                                                                                                                

asked  if  OCS  ever  talked  to  Bill  about  getting  a  substance  abuse  assessment,  the  



                                                                                                                                  

caseworker replied, "I did not. I know that the [T]ribe has worked with him. . . . They  



                                                                                                                                                             

provide services on the island, so we work very closely with them, and I know that those  



                                                                                                                                                            

conversations were had"; but she could not provide further detail about what those  



               

efforts entailed.  



                                                                                                                                                               

                          The caseworker's testimony throughout thetermination trialis riddled with  



                                                                                                                                                                  

similarly generic statements that defer to the Tribe's actions without documentation by  



                                                                                                                                                             

OCS or the Tribe and without testimony from the Tribe to support when and in what  



             21          Jude M. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.                                                                 ,  



394 P.3d 543, 556 (Alaska 2017).                     



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

                                                                                                                                                          

400 P.3d 99, 105 (Alaska 2017).  

                                                   



                                                                               -12-                                                                          7335
  


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

context those efforts occurred.                                   As we have repeatedly said, "[a]ctive efforts occur                                            



 'where the state caseworker takes the client through the steps of the plan rather than                                                                             

                                                                                                  23   Here, OCS recommended inpatient  

requiring that the plan be performed on its own.' "                                                                                                         



treatment  for  both  parents  -  did  it  help  them  identify  appropriate  programs  and  

                                                                                                                                                                     



complete the necessary paperwork to apply?  OCS recommended parenting classes -  

                                                                            



did it provide Bill and Clara a schedule for those classes, give reminders, or check in  

                                                                                                                                                                         



afterward to confirm their attendance?  OCS recommended domestic violence classes  

                                                                                                                                                                              



- after Bill and Clara completed what was available on-island, did OCS connect them  

                                                                                                                                                                   

to other resources to continue this education?24                                                    The answers to these questions are  

                                                                                                                                                                      

unclear on the record before us.25  

                                                          



                           Like the superior court, we are underwhelmed by the quality of OCS's  

                                                                                                                                                               



testimony. We agree with the court's observation that OCS "made a rather lackadaisical  

                                                                                                                                                   



effort" and "put on a skeletal case about [its] required active efforts." The superior court  

                                                                                                                                                                   



was rightly concerned to doubt OCS's demonstration of active efforts. We acknowledge  

                                                                                                                                                   



that the superior court concluded that OCS met its burden due in large part to "the  

                                                                                                                                                                    



consideration the Court is to give to the parents' demonstration of an unwillingness to  

                                                                                                                                



             23           N.A. v. State             , 19 P.3d 597, 602-03 (Alaska 2001) (quoting                                                 A.A. v. State,     



Dep't of Family & Youth Servs.                                 , 982 P.2d 256, 261 (Alaska 1999)).                       



             24            The  OCS  caseworker  testified  Bill  and  Clara  completed  the  domestic  

                                                                                                                                                          

violence education available on St. Paul.  She mentioned the idea of trying an online  

                                                                                                                                                                

program, but it does not appear she followed through with connecting either parent to  

                                                                                                                                                                         

such a service.  

              



             25            We do not intend to convey OCS must have taken all these actions for its  

                                                                                                                                                                        

efforts to be considered active.   These questions are relevant queries a court might  

                                                                                                                                                                 

consider and are posed solely to demonstrate the inadequacy of OCS's evidentiary  

                                                                                                                                                      

support.  



                                                                                  -13-                                                                            7335
  


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

                                                                                                                                                                                                      26  

 change or participate in rehabilitative efforts."                                                                                                                                                             While this principle remains valid, the                                                                                                                  



parents' lack of effort does not excuse OCS's failure to make and demonstrate its efforts.                                                                                                                                                                                                                                                                                              



Even considering the parents' lack of participation, there is simply insufficient evidence                                                                                                                                                                                                                                                     



 in the record to show that OCS made active efforts.  It was legal error for the superior   



 court to conclude by clear and convincing evidence that OCS made active efforts to                                                                                                                                                                                                                                                                                        



reunify the family.                              



                                                          2.                           Active efforts are not documented in detail in the record.                                                                                                                                                                         



                                                          A related but distinct problem is OCS's failure to document its active                                                                                                                                                                                                                          



                                                                                                                              27  

 efforts in detail in the record.                                                                                                                                                                                                                                                                                                                             

                                                                                                                                          While documentation is related to OCS's duty to make  



                                                                                                                                                                                                                                                                                                                                                                          

 active  efforts,  documenting  those  efforts  is  a  separate  responsibility.                                                                                                                                                                                                                                                     The  act  of  



                                                                                                                                                                                                28  

                                                                                                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                        rather, it is a mechanism for OCS and the  

 documentation is not itself an "active effort"; 



                             26                           On   this   point,   the   superior   court   relied   in   particular   on  the   following  



 language:  



                                                          "[A] parent's demonstrated lack of willingness to participate                                                                                                                                                       

                                                          in treatment may be considered in determining whether the                                                                                                                                                                                           

                                                          state has taken active efforts."                                                                                                  Failed attempts to contact the                                                                                     

                                                          parent or obtain information from her may qualify as active                                                                                                                                                                             

                                                          efforts iftheparent's                                                                   evasiveor                                   combativeconduct "rendered                                                          

                                                          provision of services practically impossible."                                                                                                                                                             And "[i]f a                                     

                                                          parent has a long history of refusing treatment and continues                                                                                                                                                           

                                                          to refuse treatment, OCS is not required to keep up its active                                                                                                                                                                          

                                                          efforts once it is clear that these efforts would be futile."                                                                                                                                                       



Sylvia L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                                                                                                                                                                                                            , 343 P.3d   

425, 432-33 (Alaska 2015) (alterations in original) (first quoting                                                                                                                                                                                                                        E.A. v. State, Div. of                                                            

Family &Youth Servs.                                                                             , 46 P.3d 986, 990-91 (Alaska 2002); and then quoting                                                                                                                                                                                   Wilson W.   

 v.  State, Office of Children's Servs.                                                                                                                  , 185 P.3d 94, 101 (Alaska 2008)).                                                                                   



                             27                           25 C.F.R.  23.120(b) (2018).  

                                                                                                                                                           



                             28                           Compare 25 C.F.R.  23.2 (providing a list of 11 examples of what active  

                                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                                                            (continued...)  



                                                                                                                                                                                  -14-                                                                                                                                                                          7335
  


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

                                                                                                                      29  

court to ensure that active efforts have been made.                                                                         Documentation is required by   



                                                                                                                                                                                   30  

ICWA and is critical to compliance with ICWA's purpose and key protections.                                                                                                              The  



                                                                                                                                                                                   

CINAstatutealso requires OCSto document its provision offamilyreunification support  



                    31                                                                                                                     32  

                          But such documentation is woefully missing here.                                                                       

services.                                                                                                                       



               28             (...continued)  



                                                                                                                                                                                           

efforts  may  include,  such  as  "[c]onducting  a  comprehensive  assessment  of  the  

                                                                                                                                                                                          

circumstances of the Indian child's family," "[i]dentifying appropriate services and  

                                                                                                                                                                                   

helping the parents to overcome barriers," and "[c]onsidering alternativeways to address  

                                                                                                                                                                                                

the needs of the Indian child's parents"), with 25 C.F.R.  23.120 (setting forth in a  

                                                                                                                                                                                       

separate section of the Regulations the requirement that the state agency and the court  

                                                                                                                                                                      

document active efforts as a means to ensure that these efforts have been made).  



               29             See BUREAU OF                       INDIAN  AFF., G                   UIDELINES FOR                    IMPLEMENTING THE                             INDIAN  

                                        

C      H      I   L      D             W        E     L     F     A      R     E             A       C     T              4     4     (     D  e         c     .   2      0     1     6     )  ,  

https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf("Therule                                                                                                            .. .  

requires the court to document active efforts in detail in the record. . . . State agencies                                                                                     

also need to help ensure that there is sufficient documentation available for the court to                                                                                                     

use in reaching its conclusions regarding the provision of active efforts.").                                                                                              While the   

BIA Guidelines are non-binding, we have looked to these guidelines in the past for                                                                                                          

assistance in interpreting ICWA.                                             See, e.g.,  David S. v. State, Dep't of Health & Soc.                                                       

Servs., Office of Children's Servs.                                          , 270 P.3d 767, 781-82 (Alaska 2012).                                                   



               30             See Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,816  

                                                                                                                                                                

(June 14, 2016) (codified at 25 C.F.R. pt. 23); 25 C.F.R.  23.120(b).  

                                                                                                                                    



               31             AS 47.10.086(a)(3).  

                                       



               32             On appeal, OCS cites pervasively in its brief to evidence that was not  

                                                                                                                                                                                           

admitted at the termination trial and therefore cannot be relied upon by this court.  See  

                                                                                                                                                                                           

Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 309 P.3d  

                                                                                                                                                                                         

850, 856 (Alaska 2013) ("On appeal, we review a trial court's decision in light of the  

                                                                                                                                                                                            

evidence presented to that court."); Paula E. v. State, Dep't of Health & Soc. Servs.,  

                                                                                                                                                                                    

Office of Children's Servs., 276 P.3d 422, 430 (Alaska 2012) ("[W]e will consider only  

                                                                                                                                                                                         

the evidence that was admitted at the hearing.").  

                                                                                                                



                              For example, OCS cites to its emergency petition for adjudication of a child  

                                                                                                                                                                                       

                                                                                                                                                                     (continued...)  



                                                                                             -15-                                                                                       7335
  


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

                            We also reiterate that the superior court warned OCS at the February 2016                                                                      



adjudication hearing "that this is as little over the line of active efforts as you can get                                                                                    



while crossing the line."                            It escapes comprehension why, in the face of such an explicit                                                    



warning, OCS failed to rectify its deficiencies and failed to create the documentation and                                                                                    



provide the witness testimony necessary to support what efforts it and the Tribe did                                                                                          

             33  For example, OCScontracted with the Tribe to provide on-island services to Bill  

make.                                                                                                                                                                         



and Clara; it likely would have been helpful for the superior court to hear testimony from  

                                                                                                                                                                            



tribal representatives describing the efforts made to provide family support services, but  

                                                                                                                                                                               



              32            (...continued)  



                                                                                                                                                                               

in need of aid, hearing log notes, Clara's substance abuse assessment, testimony fromthe  

                                                                                                                                                                            

adjudication hearing, and the OCS report for the permanency hearing. OCS did not seek  

                                                                                                                                                                               

to admit any of these items into evidence at the termination trial, nor did it ask the  

                                                                                 

superior court to take notice of earlier testimony.  



                                                                                                                                                                            

                            This attempt by OCS to bolster its documentation of active efforts only  

                                                                                                                                                                           

serves to further illustrate the paucity of evidence presented at the termination trial.  

                                                                                                                                                           

Additionally, even  if evidence and  testimony from the February  2016  adjudication  

                                                                                                                                                             

hearing had been admitted at the October 2017 termination trial, it would not substantiate  

                                                                                                                      

OCS's efforts during the intervening twenty months.  



              33            It is theoretically possible that adequate testimony regarding OCS's active  

                                                                                                                                                                         

efforts might suffice even if the documentation of those efforts is sparse.  We have held  

                                                                                                                                                                             

that in certain circumstances the superior court may "credit OCS caseworkers' sworn  

                                                                                                                                                                        

testimony  about  the  extent  of  services  provided  .  .  .  without  requiring  additional  

                                                                                                                                                               

documentation."  Caitlyn E. v. State, Dep't of Health &Soc. Servs., Office of Children's  

                                                                                                                                                               

Servs., 399 P.3d 646, 656 (Alaska 2017) (dismissing argument that the record should  

                                                                                                                                                                       

have included "more detailed reports" from the mother's stay in a long-term inpatient  

                                                                                                                                                                   

treatment facility). But without supporting documentation, the quality of a caseworker's  

                                                                                                                                                         

testimony must be sufficient to meet the clear and convincing evidence standard; in this  

                                                                                                                                                                              

case, it was not sufficient.  

                                                        



                                                                                      -16-                                                                                 7335
  


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

none   was   proffered.     OCS   also   could   have   provided   the   court   with   its  ORCA  



                      34  

documentation                                                                                              

                         regarding actions taken to reunify the family, but it did not.  



                                                                                                                       

                    On the record before us, there is insufficient evidence to sustain an active  



                                                                                                                     

efforts finding under a clear and convincing evidence standard. Accordingly, we reverse  



                                                                                                                          

the superior court's active efforts finding, vacate the court's termination order, and  



                                                                                                             

remand for further proceedings.  As this case is governed by the 2016 BIA Regulations,  



                                                                                                                       

on  remand  the  superior  court  should  expressly  analyze  OCS's  efforts  under  those  



                                                                                                             

standards.  Finally, we are mindful of the fact that Noah and Olwen have been in OCS  



                                                                                                                      

custody since 2015 and of the importance of achieving permanency for these young  



                                                                                                            

children.  Therefore, the superior court and OCS should expedite further proceedings.  



V.        CONCLUSION  



                                                                                                                           

                    We REVERSE the superior court's active efforts finding, VACATE the  



                                                                                                                

order terminating Bill's and Clara's parental rights to Noah and Olwen, and REMAND  



                                                                               

this case for further proceedings consistent with this opinion.  



          34        The  Online  Resource  for  the  Children  of  Alaska  (ORCA)  is  a  data  system  



in  which  OCS  caseworkers  document  case  notes,  such  as  family  contact.  



                                                            -17-                                                           7335  

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