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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mona J. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (6/10/2022) sp-7598
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
MONA J., )
) Supreme Court No. S-18049
Appellant, )
) Superior Court No. 4BE-17-00064 CN
v. )
)
O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH
& ) No. 7598 - June 10, 2022
SOCIAL SERVICES, OFFICE
OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Bethel, Nathaniel Peters, Judge.
Appearances: Rachel E. Cella, Assistant Public Defender,
and Samantha Cherot, Public Defender, Anchorage, for
Appellant. Kimberly D. Rodgers and David A. Wilkinson,
Assistant Attorneys General,Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
MAASSEN, Justice.
I. INTRODUCTION
Thesuperior court terminated amother'sparentalrights toher twochildren.
Because the children are Indian children as defined by the Indian Child Welfare Act
----------------------- Page 2-----------------------
(ICWA), the Office of Children's Services (OCS) was required to make active efforts to
provide remedial services and rehabilitative programs designed to prevent the breakup
of the family before the mother's rights could be terminated. The superior court found
clear and convincing evidence that OCS satisfied this requirement, although OCS's
efforts were ultimately unsuccessful.
The mother appeals, challenging only the active efforts finding. She asks
us to overturn precedent allowing courts to consider a parent's noncooperation and the
resulting futility of OCS's actions when determining whether OCS satisfied the active
efforts standard. She argues in the alternative that even under existing law the superior
court's active efforts finding was erroneous. We agree with the mother that the court
erred by stating that active efforts "are dependent on [the mother's] willingness to
engage"; the active efforts inquiry depends primarily on OCS's efforts, not the parent's
reaction to those efforts. We take this opportunity to clarify the extent to which a
parent's noncooperation is relevant to the active efforts analysis. And although we
disagree in part with the superior court's approach in this case, we independently
conclude that OCS's efforts satisfy the active efforts standard, and we therefore affirm
the termination order.
II. FACTS AND PROCEEDINGS
A. Background And Initial Contact With OCS
Mona is the mother of Anders (born in 2013) and Vera (born in 2015), 1
who are "Indian children" as defined by ICWA.2 Mona is no longer in a relationship
1 Pseudonyms are used to protect the family's privacy.
2 25 U.S.C. § 1903(4) (defining an "Indian child" as "any unmarried person
who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible
(continued...)
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with the children's father, Jared, who voluntarily relinquished his parental rights at the
termination trial.
OCS first became involved with Mona's family in December 2016, after
she repeatedly asked a nonprofit family support center to help her with her children. In
January 2017 Mona met with an OCS worker at an Anchorage domestic violence shelter.
She explained that she lacked reliable family support in Anchorage, was taking
medication for depression and anxiety, and was feeling overwhelmed. Anders had been
behaving aggressively, which Mona attributed to his exposure to domestic violence, and
Vera had begun copying his misbehavior. OCS offered Mona resources, including a bus
pass to help her get to appointments, but Mona declined the offer.
Mona sought OCS's help again the next day, seeking a temporary
alternative caregiver for her children. OCS contacted Mona's tribe and the children's
paternal grandmother, Ruth, who lived in Bethel, and planned for the children to go to
Bethel to temporarily live with Ruth. Before the flight, however, Mona contacted OCS
and said she would keep the children with her in Anchorage instead. OCS attempted to
contact Mona a few more times that month, but she did not return its calls.
B. Mona's Initial Assessment
OCS next met with Mona in June 2017 at a Bethel shelter; Mona had just
left her village because of a lack of support there. She told the OCS caseworker that she
had been using tramadol, a synthetic opioid, for about two years due to stress and had
last used it a few days before. The caseworker later testified that during the encounter
Mona's children were unruly and "not really listening to [Mona]," and Vera had a bruise
2 (...continued)
for membership in an Indian tribe and is the biological child of a member of an Indian
tribe").
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----------------------- Page 4-----------------------
near one eye. Six days later Mona returned a call from the caseworker and, according
to the caseworker's later testimony, "didn't feel that she was safe right now for the kids."
3
She also told the caseworker she was pregnant.
The caseworker began looking for a temporary caregiver for Anders and
Vera; the caseworker left a voicemail for Jared and spoke with Mona's mother, who
declined to take the children. The caseworker then talked to Ruth, who agreed to take
the children overnight and again while Mona received an integrated assessment to
evaluate any substance abuse and behavioral issues.
Mona's integrated assessment recommended a six-week residential
treatment program, which the caseworker encouraged her to attend. Mona initially
agreed to participate but then changed her mind; she told OCS that she and the children
would return to the village instead.
C. OCS's Non-Emergency CINA Petition
The caseworker next met with Mona in July after Vera was admitted to the
hospital with pneumonia; Anders was living with Jared. OCS filed a non-emergency
child-in-need-of-aid (CINA) petition alleging that both children were children in need
of aid. The next day, apparently in response to the petition, Mona left an abusive
voicemail at OCS, telling the caseworker to leave her and her children alone. The
caseworker met with Jared, who told her that Mona now had both children because he
and Ruth were frightened of her.
The caseworker met with Mona in late July and texted her a few days later
"to see if she needed any assistance"; Mona did not respond.
3
Mona gave birth in late October 2017, and the baby tested positive for
tramadol; she arranged for a tribal adoption of the baby.
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----------------------- Page 5-----------------------
D. The Children's Placement With Jared And Ruth
In August 2017 Mona called the caseworker and asked that OCS take the
children into its custody. OCS placed both children with Jared, but Ruth assumed most
childcare responsibilities. Mona visited fairly regularly, though according to Ruth the
children acted out after her visits.
In mid-October OCS created a case plan for Mona, which she signed. The
plan called for her to address her substance abuse issues, attend outpatient services,
obtain a behavioral health and substance abuse assessment, and complete a parenting
class; Mona testified that she completed the parenting class.
In late October Ruth asked OCS to remove Anders and Vera from her care,
and OCS filed an amended emergency petition for CINA adjudication and temporary
custody. In early November OCS removed the children fromRuth's home and sent them
to live with a foster parent.
In December Mona stipulated that Anders and Vera were children in need
of aid due to neglect. The stipulation also outlined a visitation schedule: Once the
children were returned to Ruth's home, Mona would have daily phone calls and three
two-hour visits a week. Mona was also supposed to obtain an integrated assessment;
once she completed any recommended treatment program, overnight visits and a trial
home visit could begin. But the stipulation recognized that Mona was living with her
boyfriend, Earl, a registered sex offender, and provided that any visits would "depend
on an appropriate resolution to the problems presented by the presence of a registered
4
sex offender" in her home.
4 Mona and Earl continued their relationship throughout the case, and there
were a number of domestic violence incidents between them in 2018 and 2019.
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----------------------- Page 6-----------------------
E. OCS's Further Involvement With Mona
The two children were returned to Ruth's care in late 2017 or early 2018.
A second OCS caseworker formalized a family contact plan that allowed Mona to visit
the children three times a week. Ruth supervised the visits at first, but she later told
Mona to schedule them with OCS. Ruth again asked to have the children removed from
her home because of Mona's volatility and the children's misbehavior following her
visits. OCS placed the children in another home temporarily.
Anders was returned to Ruth's home after about a month, but Ruth felt she
could not safely take care of both children because they fought constantly. Vera was
placed with a foster parent, Lily, in another village.
Mona participated in an outpatient substance abuse program early in 2018
and believed she had completed that program, though an OCS caseworker later testified
that Mona told her she left early. In the spring of 2018 Mona visited the emergency
room after overdosing on tramadol. At a follow-up visit she said she used tramadol
because of the stress caused by OCS's removal of her children, and she said she worried
that healthcare providers were making it more difficult for her to get her children back.
That summer Vera traveled to South Dakota with Lily. Mona moved for
a visitation review hearing, asking the court to grant her unsupervised visits with Anders
and allow her to see Vera in South Dakota. The court denied these requests but
encouraged OCS to work toward unsupervised visits with Anders and to plan a long visit
with Vera upon her return to Alaska.
A third OCS worker created a new case plan in September. The plan
required Mona to volunteer for school-relatedactivities,participateintraditional cultural
activities with her children, and engage in formal counseling as needed. In April 2019
an OCS worker called Mona to schedule a case-planning meeting and offered her a cab
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----------------------- Page 7-----------------------
voucher. Mona missed the meeting and did not answer a follow-up call; she called back
later that day but did not leave a message when no one answered.
In May afourth caseworker assumed responsibility for Mona'scase. Mona
left this caseworker a message asking for an appointment to create a case plan. The
caseworker testified that she scheduled an appointment for later in the month and offered
Mona cab fare, but she could not recall whether the meeting occurred.
Lily took Vera to South Dakota again in summer 2019. OCS coordinated
a trip for Mona to visit Vera there that summer and provided her with a travel itinerary.
In June OCS also gave Mona applications for three residential treatment facilities in
Anchorage and Fairbanks. When the caseworker asked Mona how she planned to keep
her children safe from Earl given his sex-offender status, Mona became emotional; she
told the caseworker she was pregnant with Earl's child and would not put the father of
her child out of the house.
In July OCS updated the family contact plan due to complaints from both
Ruth and Lily about Mona's behavior. Visits with Anders were no longer to take place
at Ruth's home, and limits were placed on Mona's contact with Lily. Mona completed
another substance abuse assessment, but without the behavioral component that OCS
believed should be included.
In late 2019 Mona attended residential treatment in Bethel for three weeks
but was medivaced to Anchorage with heart problems and did not complete the program.
In November 2019 she gave birth to another child, who remained with her as of the time
of trial.
In December the caseworker met with Mona and created a case plan
requiring her to undergo behavioral health and substance abuse assessments, complete
a psychological evaluation, and find housing apart from Earl. But Mona refused to sign
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----------------------- Page 8-----------------------
the case plan or a release of information. OCS nonetheless arranged for her to have a
psychological evaluation in Anchorage, including booking flights and providing cab
vouchers, and it sent her the itinerary a little over a week in advance. Mona did not
respond and the assessment did not occur; Mona contends on appeal that she never
agreed to it. Also at this meeting Mona asked that OCS set up a urinalysis schedule for
5
her.
Mona and her attorney met with the caseworker in January 2020. In
response to the caseworker's questions, Mona denied knowing any details of Earl's
criminal history. OCS invited her to a meeting to discuss medications that had been
prescribed for Anders to help with his behavior, but she did not attend, later telling OCS
she had lost her bus pass.
In February Mona asked the court to review its disposition order. She said
she had been sober for over a year, and although she hoped to find independent housing,
"the reality of housing in the region means that people can wait for years to obtain their
own housing." She also argued that an "outright ban on contact" between Earl and the
children was not feasible. In March Mona asked the court to review the limits on
visitation; OCS had just prohibited visits with Anders at school after Mona visited one
day without prior authorization and he threw a tantrum.
In April OCS filed a petition to terminate Mona's and Jared's parental
rights. In April the court also held a permanency hearing and approved OCS's goal of
adoption, and it denied Mona's motions to review the disposition order and visitation.
The court also instructed OCS to help Mona find new housing. In response OCS
contacted the Alaska Housing Finance Corporation to determine whether Mona was
5
In March and April of 2020, OCS set up urinalyses for Mona pursuant to
this request; she took about ten tests and all were negative.
-8- 7598
----------------------- Page 9-----------------------
eligible to apply for its services. The caseworker filled out part of an application,
highlighted the sections Mona needed to complete, and dropped the packet off for her;
Mona picked the packet up but the superior court found that she did not complete it,
which the court attributed to her reluctance to leave Earl.
In May Mona asked OCS whether it could find alternative placement for
Vera in Alaska for the summer rather than allowing Lily take her to South Dakota again.
OCS contacted Mona's grandmother, but placement with her was not possible because
of a household member's disqualifying criminal history. OCS continued to reach out to
Mona's family members based on a list Mona provided, but it was unable to find Vera
a suitable placement, and it again allowed her to spend the summer in South Dakota with
Lily. OCS arranged to fly Mona to Bethel for a visit during Vera's stopover on the way
out of state. Mona was already in Bethel, however, because she had taken her baby to
the emergency room there. She nonetheless missed the scheduled visit with Vera. She
then attempted to intercept Lily and Vera at the airport before they boarded the plane, but
OCS refused to allow the meeting to occur because it could not arrange appropriate
supervision at the last minute and Mona was in a "very emotional" state.
In June 2020 another caseworker was assigned to the case. He created a
new case plan, which Mona refused to sign. The plan required her to obtain a
psychological evaluation, complete another parenting class, participate in another
substance abuse assessment and followitsrecommendations, undergo randomurinalysis
testing, and end the children's contact with known sexual offenders.
By November the case was reassigned to one of the caseworkers who had
had it before. This caseworker had difficulty contacting Mona about visits and
eventually, at Mona's request, communicated with her only through her attorney. In
February 2021 OCS learned that Vera had been diagnosed with an emotional disorder
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and asked Mona to consent to medication. Mona refused; the caseworker responded by
asking her to resume case planning and undergo a behavioral health assessment. The
next day she sent Mona a letter encouraging her to reengage with OCS.
F. Termination Trial And Termination Order
The superior court held a trial in March 2021, about a year after the
termination petition was filed, and ordered the termination of Mona's parental rights.
Among its other necessary findings the court found by clear and convincing evidence
that OCS had made active efforts to provide remedial services and rehabilitative
6
programs intended to prevent the breakup of the family, as required by ICWA.
The superior court began its discussion of active efforts by stating that
active efforts "are more than reasonable efforts and are dependent on [Mona's]
willingness to engage." The court found that Mona "was never willing to engage in an
attempt to reunify with her children and actively attempted to frustrate OCS's attempts
to provide remedial service[s] and rehabilitative programs at different points throughout
the case." The court acknowledged that Mona attended urinalysis tests, always tested
negative, participated in some family contacts, and completed some of her case plan
requirements. The court also observed, however, that she sometimes actively frustrated
family contact and refused to cooperate with most OCS workers. The court wrote:
"OCS testified convincingly that OCS offered services to [Mona] over the life of the
case" even though "there were times when OCS was more lax in [its] efforts." The court
cited OCS's facilitation of regular visits and its efforts to get Mona the proper
6 25 U.S.C. § 1912(d) ("Any party seeking to effect a . . . termination of
parental rights to[] an Indian child under State law shall satisfy the court that active
efforts have been made to provide remedial and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.").
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assessments, contrasting these efforts with Mona's failure to return calls and texts, her
demand that all contact go through her attorney, and her refusal to attend meetings. The
court also noted OCS's attempts to encourage alternative housing for Mona and her
refusal to move away from Earl.
Mona appeals the termination order, challenging the court's active efforts
finding.
III. STANDARD OF REVIEW
"Whether OCS made active efforts . . . as required by ICWA is a mixed
question of law and fact." 7
"We review factual findings for clear error, reversing only
if, after 'review of the entire record' . . . we are left 'with a definite and firm conviction
8
"Whether the superior court's factual
that a mistake has been made.' "
findings . . . satisfy ICWA is a question of law to which we apply our independent
9
judgment."
"We 'bear in mind at all times that terminating parental rights is a drastic
10
measure.' "
7 Philip J. v. State, Dep't of Health &Soc. Servs. , Off. of Child.'s Servs. , 314
P.3d 518, 526 (Alaska 2013).
8 Ronald H. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
490 P.3d 357, 365 (Alaska 2021) (omission in original) (quoting Jon S. v. State, Dep't
of Health & Soc. Servs., Off. of Child.'s Servs., 212 P.3d 756, 761 (Alaska 2009)).
9 Id.
10 Jon S., 212 P.3d at 761 (quoting Karrie B. ex rel. Reep v. Catherine J., 181
P.3d 177, 184 (Alaska 2008)).
-11- 7598
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IV. DISCUSSION
A. ICWA Requires The State To Make Active Efforts To Provide
Remedial Services Designed To Reunite The Family.
ICWA requires that "[b]efore terminating parental rights to an Indian child,
a court must find [by clear and convincing evidence] that 'active efforts have been made
to provideremedial services and rehabilitative programs designed to prevent the breakup
11
of the Indian family and that these efforts have proved unsuccessful.' " The Bureau of
Indian Affairs regulations define active efforts as "affirmative, active, thorough, and
12
timely." Active efforts "must involve assisting the parent . . . through the steps of a
case plan and with accessing or developing the resources necessary to satisfy the case
13
plan." The regulations explain:
To the maximum extent possible, active efforts should be
provided in a manner consistent with the prevailing social
and cultural conditions and way of life of the Indian child's
Tribe and should be conducted in partnership with the Indian
child and the Indian child's parents, extended family
[14]
members, Indian custodians, and Tribe.
Efforts should be "tailored to the facts and circumstances of the case."15
11 Caitlyn E. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. ,
399 P.3d 646, 651 n.6, 654 (Alaska 2017) (quoting Jon S. , 212 P.3d at 760-61); see also
25 U.S.C. § 1912(d); 25 C.F.R. § 23.120(a) (2021); CINA Rule 18(c)(2)(B).
12 25 C.F.R. § 23.2 (2021).
13 Id.
14 Id.
15 Id. ; see also Lucy J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., 244 P.3d 1099, 1116 (Alaska 2010) (listing active efforts as one of several
(continued...)
-12- 7598
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16
However, "the active efforts requirement does not require perfection." A
court's "concern is not with whether [OCS's] efforts were ideal, but with whether they
17 We have explained the
crossed the threshold between passive and active efforts."
difference between passive and active efforts as follows:
Passive efforts are where a plan is drawn up and the client
must develop his or her own resources towards bringing it to
fruition. Active efforts . . . [are] where the state caseworker
takes the client through the steps of the plan rather than
requiring that the plan be performed on its own. For instance,
rather than requiring that a client find a job, acquire new
housing, and terminate a relationship with . . . a boyfriend
who is a bad influence, [ICWA] would require that the
caseworker help the client develop job and parenting skills
necessary to retain custody of her child.[18]
Courts "conduct[] an active efforts inquiry on a case-by-case basis because 'no pat
formula' exists for distinguishing between active and passive efforts."19 "In determining
15 (...continued)
procedural requirements under ICWA) (requiring that OCS "take into account the
parents' limitations or disabilities" and " reasonably tailor [the reunification plan] to the
client's individual capabilities")).
16 Pravat P. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs., 249
P.3d 264, 272 (Alaska 2011).
17 Id.
18 A.A. v. State, Div. of Fam. &Youth Servs. , 982 P.2d 256, 261 (Alaska 1999)
(quoting CRAIG J. D ORSAY, T HE INDIAN CHILD WELFARE ACT AND LAWS AFFECTING
INDIAN JUVENILES MANUAL 157-58 (1984)).
19 Philip J. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs ., 314
P.3d 518, 527 (Alaska 2013) (quoting A.A. , 982 P.2d at 261).
-13- 7598
----------------------- Page 14-----------------------
whether OCS made active efforts, the trial court may consider all services provided
during the family's involvement with OCS." 20
B. Courts May Consider A Parent's Noncooperation When Determining
Whether OCS Made ActiveEfforts,But TheAnalysis Turns Primarily
On OCS's Efforts.
The superior court began its discussion of active efforts with the statement
that "[a]ctive efforts are more than reasonable efforts and are dependent on [Mona]'s
willingness to engage," and it extensively discussed Mona's lack of cooperation with
OCS. Mona argues that the court's focus on her actions was error; she also asks us to
overruleour precedent allowingcourts toconsideraparent's demonstratedunwillingness
to engage with OCS when determining whether OCS's efforts satisfy the ICWA
standard. Lack of engagement by a parent, Mona argues, "may demonstrate the requisite
efforts were unsuccessful, but it should not be used to excuse OCS's shortcomings." She
argues that our precedent "excuses OCS based upon speculation and specious reasoning,
undermining ICWA's protections and perpetuating the problems ICWA was designed
to counteract." She contends that the superior court applied this so-called "futility
doctrine," and she urges us to overturn the doctrine and reverse the termination order in
which, she argues, it played a decisive part.
The superior court did overemphasize Mona's behavior when determining
whether OCS had made active efforts, and the court erred by stating that active efforts
"are dependent on [Mona's] willingness to engage." We now seek to clarify how a court
may appropriately consider a parent's actions and unwillingness to cooperate when
analyzing whether OCS has made active efforts. Crucially, we emphasize that the
20
Sylvia L. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs., 343
P.3d 425, 432 (Alaska 2015).
-14- 7598
----------------------- Page 15-----------------------
analysis of active efforts under ICWA turns primarily on OCS's actions, not on the
parent's response.
When enacting ICWA in 1978, Congress acknowledged "that there is no
resource that is more vital to the continued existence and integrity of Indian tribes than
21 Congress found "that an alarmingly high percentage of Indian families
their children."
are broken up by the removal, often unwarranted, of their children from them by
nontribal public and private agencies and that an alarmingly high percentage of such
children are placed in non-Indian foster and adoptive homes and institutions."22
Congress passed ICWA in an effort to "protect the best interests of Indian children and
to promote the stability and security of Indian tribes and families by the establishment
of minimum Federal standards for the removal of Indian children from their families."23
The active efforts requirement is an important aspect of these minimum standards.24
21 25 U.S.C. § 1901(3).
22 25 U.S.C. § 1901(4). Alaska is no exception to this history. See Lex
Treinen, 'I thought mynamewas mynumber':Survivors recount Alaskaboarding school
e x p e r i e n c e , A L A S K A P U B . M E D I A ( J u n e 2 5 , 2 0 2 1 ) ,
https://www.alaskapublic.org/2021/06/25/confronting-the-legacy-of-boarding-school
s-in-alaska-2/; Kortnie Horazdovsky, Alaska Native elders share boarding school
LASKA 'S NEWS SOURCE (Sep. 30, 2021),
experiences on 'Orange Shirt Day', A
https://www.alaskasnewssource.com/2021/09/30/alaska-native-elders-share-boarding
-school-experiences-orange-shirt-day/.
23
25 U.S.C. § 1902.
24
See 25 U.S.C. § 1912(d).
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----------------------- Page 16-----------------------
A parent's lack of cooperation or unwillingness to participate in treatment
25
does not excuse OCS from making active efforts and proving that it has made them; we
26 As we have written before, an active
cannot create a judicial exception to ICWA.
27 That said, a parent's actions have a
efforts finding must "turn[] on OCS's efforts."
place in the court's determination of whether OCS's efforts satisfy the ICWA standard.28
Our prior cases recognize three sometimes-interconnected ways that a parent's
unwillingness to cooperate can impact a court's active efforts analysis: (1) it can excuse
25 See Bill S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. ,
436 P.3d 976, 983 (Alaska 2019) ("[T]he parents' lack of effort does not excuse OCS's
failure to make and demonstrate its efforts.").
26 A.M. v. State , 891 P.2d 815, 827 (Alaska 1995), overruled in part on other
grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996).
27 Demetria H. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs.,
433 P.3d 1064, 1072 (Alaska 2018).
28 Federal guidelines leave room for some consideration of a parent's actions
when evaluating active efforts. When discussing how long active efforts must be made,
the guidelines state:
[I]f a parent initially refused alcohol treatment despite an
agency's active efforts to provide services, a court could find
that these efforts satisfied the requirement for purposes of the
foster-care placement. But, if the parent subsequently
completes alcohol treatment and needs additional services to
regain custody (such as parenting skills training), the court
will need to consider whether active efforts were made to
provide these services.
BUREAU OF INDIAN AFFS., U.S.D EP 'T OF THE INTERIOR,G UIDELINESFOR IMPLEMENTING
INDIAN CHILD WELFARE ACT 43 (Dec. 2016) [hereinafter BIA G UIDELINES].
THE
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----------------------- Page 17-----------------------
29
further active efforts once it is clear those efforts would be futile; (2) it can excuse
30
"minor failures by [OCS]";
and (3) it can influence what actions qualify as active
efforts.31
The first listed use of the doctrine - to excuse further efforts - seems to
be what Mona is most concerned with, and we agree that it should be the least frequently
invoked. Although there are rare occasions where further active efforts of any type may
32 And
be excused, OCS must always show that it made active efforts in the first place.
when a parent is unwilling to cooperate or to participate in treatment, OCS's response
must be to attempt to overcome that noncooperation.33 This requires understanding why
the parents of Alaska Native and Native American children may be suspicious of OCS
and reluctant to cooperate in a case plan.34 But even courts that have expressly rejected
29 See, e.g. , Wilson W. v. State, Off . of Child.'s Servs. , 185 P.3d 94, 97, 101
(Alaska 2008).
30 See, e.g., Ben M. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., 204 P.3d 1013, 1021 (Alaska 2009).
31 See, e.g., Sylvia L. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., 343 P.3d 425, 432-33 (Alaska 2015).
32 We do not intend to imply that OCS may determine independently that
active efforts are no longer required in a particular case. Cf. AS 47.10.086(c)(2)(A)
(allowing a court to determine that reasonable efforts are not necessary given certain
circumstances, such as parent murdering other parent). OCS should assume that active
efforts should continue.
33 See 25 C.F.R. § 23.2 (2021) (requiring child welfare agencies to "help[] the
parents to overcome barriers" to reunification).
34 The Washington Supreme Court recently wrote:
(continued...)
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a futility doctrine have agreed that there is some point at which active efforts can no
35
longer be required.
This issue may be subsumed in another rule we apply in the active
efforts context: OCS's efforts must be reviewed as a whole, and a failure in one area or
for a discrete amount of time will not necessarily bar a finding that OCS satisfied the
36
active efforts standard over the life of the case.
Regarding the second use of the doctrine - when a parent's
noncooperation can excuse minor failures by OCS - we emphasize that this extends
34 (...continued)
A parent's inability or unwillingness to engage with the
[State] may be attributed to many factors, such as cultural
differences, poverty, or generational trauma. It may also be
related to the reasons for the dependency petition and ensuing
case. Excusing the [State's] burden to engage in active
efforts based on a parent's lack of engagement would
impermissibly harm Native families who are experiencing
poverty or other issues that often fall under the rubric of
"neglect." While poverty alone is not a sufficient basis for
dependency or termination, it has historically been used as
justification to remove Native children . . . .
In re Dependency of G.J.A., 489 P.3d 631, 649 (Wash. 2021). "In addition, generational
trauma has instilled a deep sense of distrust of government workers in Native
communities." Id.
35 Id. at 635 ("The [State] is not excused from providing active efforts unless
it can demonstrate to the court it has made sufficient efforts and those efforts 'have
proved unsuccessful.' " (quoting 25 U.S.C. § 1912(d)); In re JL, 770 N.W.2d 853, 867
(Mich. 2009) ("The ICWA obviously does not require the provision of endless active
efforts, so there comes a time when the [State] or the tribe may justifiably pursue
termination without providing additional services." (emphasis in original)).
36 Walker E. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
480 P.3d 598, 607-08 (Alaska 2021).
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only to minor failures that are connected to the parent's lack of cooperation. Lack of
cooperation does not excuse major failures by OCS or minor OCS failures unrelated to
the parent's behavior. This use of the doctrine may also be subsumed in the rule that we
view OCS's efforts as a whole. 37
The third use of the doctrine involves the most common way that a parent's
actions may feature in an active efforts analysis: how OCS's efforts should respond to
a parent's noncooperation. ICWA requires that active efforts "be tailored to the facts and
circumstances of the case";38 these circumstances include a parent's negative reaction to
OCS's attempts at rehabilitation and reunification. When a parent is unwilling to
cooperate and OCS merely persists in the same actions it would have taken with a
cooperative parent, OCS may be failing to engage in active efforts by not adjusting to the
circumstances of the case. A fairly wide spectrum of behavior may be classified as
"noncooperation" or a "lack of willingness to participate." This can range from a refusal
39 Certainly different
to participate in treatment to threats to harm OCS employees.
40
behaviors, and motivations, require different adjustments from OCS.
37 Id.
38 25 C.F.R. § 23.2.
39 See, e.g., K.N. v. State, 856 P.2d 468, 471-72, 477 (Alaska 1993) (parent
refused to submit to psychological evaluation without court order or to follow steps of
treatment plan); Wilson W. v. State, Off. of Child.'s Servs., 185 P.3d 94, 97, 101-02
(Alaska 2008) (parent threatened to kill OCS workers).
40 For example, ifaparent refuses toundergosubstanceabuse treatment, OCS
should seek to understand the reasons for that refusal and address them. A refusal based
on a fear of confinement would require a different response than a refusal based on the
parent's conviction that there is no substance abuse problem in the first place.
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----------------------- Page 20-----------------------
As Mona contends, some of our past cases have suggested that OCS
passivity may be justified by a parent's unwillingness to cooperate. In A.A. v. State,
41 we wrote that "although the State's efforts in
Department of Family & Youth Services ,
relation to [a parent] may have been relatively passive, [the parent] demonstrated a lack
of willingness to participate in treatment" and therefore the requirements of ICWA were
met.42 And in Ronald H. v. State, Department of Health & Social Services, Office of
43 we wrote that a parent's noncooperation "is particularly relevant
Children's Services,
when efforts become passive due to lack of cooperation from the parent."44 These cases
do not obviate OCS's responsibility to make active efforts and to modify those efforts
as necessary in response to a parent's lack of cooperation. To be clear, a lack of
cooperation does not justify a decision to make only passive efforts. OCS always has an
obligation to make active efforts, regardless of whether a parent cooperates. Our prior
statements should be understood as a recognition that a parent's noncooperation with
OCS will necessarily affect the kinds of efforts OCS is able to make toward reunification
41 982 P.2d 256 (Alaska 1999).
42 Id. at 262. At oral argument, Mona highlighted A.A. as a particularly
problematic fact pattern. In A.A. we affirmed a finding of active efforts even though
OCS had not even made a case plan. Id. Without saying we would reach the same result
today, we take note of complicating factors in A.A. such as the father's incarceration and
the length of his sentence. We wrote: " 'While [n]either incarceration nor doubtful
prospects for rehabilitation will relieve the State of its duty under ICWA to make active
remedial efforts,' the practical circumstances surrounding a parent's incarceration . . .
may have a direct bearing on what active remedial efforts are possible." Id. at 261 (first
alteration in original) (quoting A.M. v. State , 891 P.2d 815, 827 (Alaska 1995), overruled
in part on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996)) .
43 490 P.3d 357 (Alaska 2021).
44 Id. at 366.
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----------------------- Page 21-----------------------
and in that way affects a court's analysis of whether OCS has satisfied its active efforts
burden.
Mona suggested at oral argument that we require trial courts to conduct
substantive review of ongoing active efforts at regular points throughout CINA
proceedings and collaborate with OCS, the parent, and other parties on identifying
possible next steps. The federal regulations do not impose such a requirement,45
although federal guidelines do make note of "a recommended practice for a court to
inquire about active efforts at every court hearing and actively monitor compliance with
the active efforts requirement."46 We add our support to this recommendation as good
practice while not making it a requirement at this time. We note that it is particularly
difficult to assess active efforts retrospectively over a period of many years, and an
approach involving more regular review would increase the likelihood that problems can
be timely resolved and disagreements mitigated - goals all parties should share.
Finally, we note that in asking us to overrule our own precedent, Mona
points to In re Dependency of G.J.A., in which the Washington Supreme Court recently
rejected its state's version of a futility doctrine as applied in ICWA cases.47 This
"judicially created" futility doctrine excused the State "from providing services if the
services would have been futile or would not remedy the parental deficiencies within the
45 See 25 C.F.R. § 23.120 (2021) (requiring only that a court ascertain that
active efforts have been made "[p]rior to ordering an involuntary foster-care placement
or termination of parental rights").
46 BIA G UIDELINES, supra note 28, at 43.
47 489 P.3d 631, 635 (Wash. 2021).
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----------------------- Page 22-----------------------
48
child's foreseeable future," even if active efforts had not already been provided. This
is not the law in Alaska, and we explicitly reject such a doctrine today. OCS's duty to
make active efforts under ICWA cannot vary "based on subjective, pre-intervention
criteria such as a parent's motivation or treatment prognosis." 49
C. In This Case OCS Made Active Efforts As Required By ICWA.
Despite our concern with the superior court's statement of the law
governing active efforts, we do agree with its conclusion that OCS demonstrated and
proved by clear and convincing evidence its active efforts to reunite Mona with her
children.
OCS's activeefforts included providingMonabuspassesandcabvouchers;
coordinating with Ruth to temporarily care for the children in early 2017 and again that
summer; speaking with Mona's care provider about her 2017 integrated assessment and
encouraging her to follow the provider's recommendation for inpatient treatment;
scheduling another assessment for her and communicating with the care provider;
creating several case plans for her; arranging for Mona to receive a psychological
assessment in Anchorage, including making the appointment, coordinating Mona's
flights, and preparing cab vouchers for her; supplying Mona with applications for
multiple treatment facilities; encouraging her to live separately from Earl so that her
children could live with her safely; involving Mona's tribe; contacting the Alaska
Housing Finance Corporation to see whether Mona was eligible for its services;
48 Id. at 648-49.
49 A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled in part on other
grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). OCS agrees in its briefing
that "the noncooperation rule does not absolve OCS from making and documenting
active efforts even when the likelihood of success is bleak."
-22- 7598
----------------------- Page 23-----------------------
completing part of a housing application for Mona and giving her the rest of the
applicationto complete; offering urinalysis testing;enrolling Anders inbehavioral health
services; ensuring that Vera could receive play therapy while in South Dakota; and
contacting members of Mona's extended family while seeking an alternative placement
for Vera.
Throughout the case OCS facilitated visitation between Mona and her
children, including in-person, telephonic, and video visits. Many visits required OCS
to coordinate flights between outlying villages and Bethel and between Bethel and South
Dakota. OCS provided Mona with cab vouchers, bus passes, and offers of rides to help
her attend visits; arranged for her to visit Anders at school during lunch times and recess;
and scheduled children's birthday celebrations to accommodate her attendance and
preferences. Visitationwas complicated by OCS's difficulty reaching Monaattimes, but
the caseworkers generally worked to accommodate her.
OCS continued with its efforts despite Mona's lack of consistent
cooperation. Early in the case Mona sought out OCS's support on occasion and
voluntarily shared information about her circumstances and needs. But she expressed
her mistrust of many people. After OCS filed a petition for custody, Mona left a
caseworker an obscene voicemail telling her to leave her children alone, which the
superior court labeled as the start of Mona's "unending antagonismand hostility towards
OCS." She was at times combative in her communication with her caseworkers as the
case went on. She hung up on one caseworker on occasion and refused to let another
into her home. For a while she refused to speak with anyone from OCS and would
communicate with them only through her attorney, even about visitation. She asked that
certain OCS workers not be allowed to supervise her visits. She attempted to skirt
OCS's visitation rules, particularly with regard to the children's contact with Earl, which
-23- 7598
----------------------- Page 24-----------------------
she sometimes allowed and encouraged. But OCS did not stop making efforts as a result
of this behavior. For example, it complied with Mona's request to communicate only
through her attorney, and it encouraged her to restart case planning after she stopped.
In sum, this case is an example not of OCS stopping active efforts in the face of a
parent's noncooperation but of OCS persisting despite resistence and changing course
when necessary.
OCS's efforts were not perfect. Although a number of different OCS
workers were assigned to Mona's case over its more than four-year duration, there were
very few, if any, case transfer meetings. OCS mismanaged at least one court-directed
visitation and did not provide consistent urinalysis testing. It did not help Mona look for
housing until several years into her case (as is further discussed below). But perfection
is not the standard, and we conclude that OCS's efforts qualify as "affirmative, active,
50
thorough, and timely."
1. Failure to refer Mona for a neuropsychological examination
Mona argues that OCS's efforts were not active because they were not
adequately tailored to her known disabilities - specifically a traumatic brain injury that
she says should have prompted OCS to refer her for a neuropsychological exam early in
the case. Mona cites the trial testimony of OCS expert Philip Kaufman, who called her
"a very, very challenged woman who's got lots going on that needs to be evaluated that
hasn't been evaluated," and notes that her "records established she had suffered a
traumatic brain injury during an ATV accident." Mona argues that "it should have been
equally clear to OCS that it needed to adjust its strategies in working with her," and a
referral to neuropsychological testing early in the case - when she was still interested
50
25 C.F.R. § 23.2 (2021).
-24- 7598
----------------------- Page 25-----------------------
in working with OCS - "could have helped OCS identify appropriate ways of
interacting with [her] and set the case on a different path."
But we agree with OCS that "the lack of such an evaluation does not negate
the . . . active efforts that OCS did make in trying to address Mona's mental health and
other needs." Kaufman's testimony about the traumatic brain injury -the only mention
of it at the termination trial - provided no details; he did not know how recent it was,
although he did conclude that Mona's "disabilities, whatever they may be, have impeded
[her] from making the progress necessary . . . for her to . . . be a safe parent." Mona did
not bring up her brain injury or alleged resulting disability at trial, and the court did not
mention it in its order terminating her parental rights. Given the limited evidence of this
alleged disability, we cannot conclude that OCS's failure to refer Mona for a
51
neuropsychological exam was fatal to the success of its efforts.
2. Failure to help Mona find independent housing
Mona argues that OCS knew as early as 2017 that she needed independent
housing and was not interested in residential treatment, but it still did not begin helping
her look for housing until 2020, after the court specifically required it. Mona was in a
shelter when OCS first met with her in 2016; a year later OCS knew that she was living
with Earl. OCS argues that it initially chose to prioritize Mona's "need for residential
substance abuse treatment that would have also addressed her immediate need for safe
housing." In summer 2017, OCS encouraged Mona to enroll in a six-week residential
treatment program. She decided against this and told OCS she would return to her
51 We also note that later in the case OCS did refer Mona for a psychological
exam, made the appointment, purchased plane tickets, and prepared cab vouchers. Mona
did not attend the appointment.
-25- 7598
----------------------- Page 26-----------------------
village instead. Although she did not immediately pursue that treatment option, there
was evidence that she participated in residential treatment at times at least through late
2019.
OCS claims that its 2020 offer of housing assistance was
"timely . . . because the help was provided when Mona finally expressed an interest in
leaving" Earl. In February 2020 Mona argued in a court filing that she would not be able
to find independent housing, indicating some possible interest in living separately from
Earl; two months later (at the superior court's directive) OCS started a housing
application for her. Under the circumstances, we do not believe that OCS's failure to
prioritize independent housing earlier in the case negates an active efforts finding. Mona
had repeatedly said she did not want to leave Earl; she became emotional when the
caseworker brought up the subject and refused to sign a case plan that required it. We
conclude that OCS's failure to find independent housing for Mona does not foreclose a
finding that OCS made active efforts in this case.
3. Failure to notify Mona of the dangers Earl presented
Mona also argues that OCS "waited until the termination trial to convey the
full scope of concerns about [Earl] to" her and did not do enough beforehand to inform
her about his history and encourage her to leave the relationship. She claims that before
the termination trial she was not aware of the extent of Earl's criminal past. OCS
responds that "the record reflects that Mona knew [Earl] was dangerous, and OCS could
have done little more under the circumstances." OCS cites trial testimony indicating that
-26- 7598
----------------------- Page 27-----------------------
Earl had assaulted Mona more than once and that OCS warned her about him
52
repeatedly.
We agree with OCS's view of this issue. Significantly, Mona signed a
stipulation in December 2017 that acknowledged she lived with a convicted sex offender
and that this was a barrier to reunification. But the evidence well supported a conclusion
that she was unwilling to deal with the issue despite OCS's repeated efforts to resolve
it. OCS workers testified at trial that they asked Mona about her relationship with Earl
several times over the life of the case and each time she was not willing to have that
discussion. In June 2019 a caseworker met with Mona outside her home and "asked her
how she planned to protect her son and daughter from a child sex offender if she was
going to have him living in the home." Mona became emotional, telling the caseworker
that she was pregnant and not willing to put the father of her child out of the house. In
a December 2019 meeting, a caseworker again told Mona she needed to find housing
away from Earl so that her children would not be exposed to a child sex offender if they
were to live with her. When the caseworker asked Mona what she knew about Earl's
52 OCS also cites earlier proceedings, including detailed testimony from Earl
himself about his crimes, and alleges that Mona lied to OCS in 2020 when she told a
caseworker she no longer lived with him. The admissibility of this testimony, along with
that of other testimony and exhibits fromproceedings that preceded the termination trial,
is at issue in this case; Mona argues that we cannot consider it and OCS argues that it is
part of the record. Because this evidence was not properly admitted at trial, we do not
consider it. Bill S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. , 436
P.3d 976, 983 n.32 (Alaska 2019); see also Chloe O. v. State, Dep't of Health & Soc.
Servs., Off. of Child.'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., Off. of Child.'s Servs. , 276 P.3d 422, 430 (Alaska
2012) ("[W]e will consider only the evidence that was admitted at the hearing.").
-27- 7598
----------------------- Page 28-----------------------
criminal history, Mona said she had never asked him anything about it. The caseworker
raised the issue again in January 2020, and Mona said "she had never asked him about
it, no one has ever told her anything about it, and the only thing that she knew was what
she heard in court." The caseworker testified at trial that when she then tried to ask
whether Mona was curious about what had happened, Mona's attorney cut her off and
stopped Mona from answering. There was also testimony that OCS barred Earl from
having contact with the children, a rule Mona repeatedly violated. Given all this, it was
reasonable for OCS to assume that Mona was aware at least of Earl's status as a child sex
offender, if not of the exact details of his past crimes, and knew that her continued
relationship with him presented a barrier to reunification; OCS repeatedly tried to raise
the issue with Mona while continuing to provide her with services and visitation. Its
efforts are sufficient to constitute active efforts under ICWA.
V. CONCLUSION
We AFFIRM the order terminating Mona's parental rights.
-28- 7598
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