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


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

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Neal M. v. State, Dept. of Health & Social Services, Office of Children's Services (08/05/2009) sp-6396

Neal M. v. State, Dept. of Health & Social Services, Office of Children's Services (08/05/2009) sp-6396

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


NEAL M., )
) Supreme Court No. S- 13288
Appellant, )
) Superior Court Nos. 3AN-06-322/23/24/
v. ) 25/3AN-07-149 CN
)
STATE OF ALASKA, DEPART- ) O P I N I O N
MENT OF HEALTH AND SOCIAL )
SERVICES, OFFICE OF ) No. 6396 - August 5, 2009
CHILDRENS SERVICES, )
)
Appellee. )
)
LACEY A.,                       )
                              )    Supreme Court No. S-13289
          Appellant,               )
                              )
     v.                       )
                              )
STATE OF ALASKA, DEPART- )
MENT OF HEALTH AND SOCIAL     )
SERVICES, OFFICE OF           )
CHILDRENS SERVICES,      )
                              )
          Appellee.           )
                              )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon Gleason, Judge.

          Appearances: Angela Greene, Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,  Anchorage,  for  Neal  M.   Robert
          Breckberg,  Assistant  Public  Advocate,  and
          Rachel  Levitt,  Office of  Public  Advocacy,
          Anchorage,  for  Lacey  A.   Megan  R.  Webb,
          Assistant  Attorney General,  Anchorage,  and
          Richard A. Svobodny, Acting Attorney General,
          Juneau,  for  Appellee.  Jerald M.  Reichlin,
          Fortier & Mikko, P.C., for Native Village  of
          Pilot  Point.   Dianne Olsen, Law  Office  of
          Dianne Olsen, Anchorage, Guardian Ad Litem.

          Before:     Fabe,  Chief  Justice,  Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION
          Lacey  A.  and  Neal M. are the parents  of  six  minor
children.1   The superior court terminated their parental  rights
to  the  five oldest children after finding that all six children
were  in  need of aid based on Neals substance abuse  and  Laceys
neglect.   Lacey and Neal appeal only the termination  of  Laceys
parental rights.  Because the superior court did not clearly  err
in  determining that the children were in need of  aid  based  on
Laceys  neglect  and  that  OCS had made  active  and  reasonable
efforts to prevent the breakup of the Indian family, we affirm.
II.  FACTS AND PROCEEDINGS
           Lacey A. and Neal M. are the biological parents of six
minor children: Edward (born in 1998), Elliot (born in 2000), Eve
(born  in  2003), Elan (born in 2005), Emma (born in  2007),  and
Elsa  (born  in  2008).  All six are Indian children  within  the
meaning of the Indian Child Welfare Act (ICWA).2
          Lacey  and  Neal first had contact with the  Office  of
Childrens Services (OCS) in 1998, the year their first child  was
born.   By  2005 OCS had received six reports of harm  concerning
the  children.  Those reports were unsubstantiated.  But in April
2006  OCS  received  a  new report of harm alleging  neglect  and
substance abuse.  An OCS social worker began regular visits  with
the  family in May 2006 and by August 2006 had made about fifteen
visits to Lacey and Neals apartment.
          Lacey  and  Neal had four children when the OCS  social
worker began visiting their home.  The social worker noticed that
the  couples then two-and-a-half-year-old daughter, Eve, was  not
very  verbal.  The social worker recommended that Neal and  Lacey
enroll  Eve  in Head Start, but they refused.  The social  worker
also  tried to get Programs for Infants and Children, Inc.  (PIC)
to  perform  an  in-home  assessment.  The  social  worker  later
testified  that Neal gave the PIC staff a really hard time  about
scheduling  and  that PIC was never able to get into  the  family
home.
          The  social  worker also learned that  the  two  oldest
children were not getting to school on time and had accrued about
seventy-nine  absences during one school year  because  Neal  was
oversleeping.  Neal claimed that the children were missing school
because they did not have clean laundry.  The social worker  took
Lacey  to  Pathway Families to get free clothes for the children.
          The childrens school gave the family an alarm clock and wake-up
calls,  but  the social worker later testified that  the  schools
efforts did not help.
          The  social  worker also transported  Lacey  to  a  job
center, helped her complete a resume, helped enroll her with  her
tribe  so  she could receive free medical services, arranged  bus
passes  and  taxi  service for the family, and  contacted  Alaska
Housing Finance Corporation about possible housing assistance.
          On  August 18, 2006, the social worker conducted a mid-
morning unscheduled home visit.  A woman identifying herself as a
friend  of  the  family  opened the door.  Entering,  the  social
worker found Lacey and the children asleep and a group of six  or
seven  unknown adults smoking something other than cigarettes  in
one of the bedrooms.  The social worker called the police and the
unknown  individuals  quickly  left.   Upon  arriving,  a  police
officer  found an empty liquor bottle with a hole burned  in  the
middle  and some type of residue inside.  The officer wasnt  sure
if it was marijuana or cocaine.
          Neal,  who  was  not  then at  home,  returned  to  the
apartment while the police were there and became angry that Lacey
had  allowed  the  police  into  the  home.   The  social  worker
testified  that she was worried about Laceys safety because  Neal
was  in  her face yelling at her.  The police arrested  Neal  for
failing   to   comply   with   his  sex   offender   registration
requirements, but Neal returned to the apartment later that day.3
          The  social worker questioned both parents at the  time
about  drug  use  in the home and asked Neal to complete  a  drug
test.  Neal tested positive for cocaine and admitted that he  had
used  drugs  at a neighbors house earlier that day.   The  social
worker  asked  Lacey  to participate in  a  plan  to  ensure  the
childrens  safety.  Under that plan, Neal would move out  of  the
home  until  August  22,  2006,  when  the  social  worker  would
reevaluate the plan.  Lacey agreed that she would not allow  Neal
or  anyone else who might be a threat to the children  back  into
the  home.  Laceys father, who lived nearby, agreed to  care  for
the children while Lacey was at work.
          The  social  worker  returned to  Laceys  apartment  on
August  22  to reevaluate the safety plan.  Both Lacey  and  Neal
were  there.   The  social worker spoke with both  parents  about
their  drug use and Neal admitted he was using drugs.  The social
worker  also spoke with eight-year-old Edward, who reported  that
Neal had stayed in the apartment over the weekend in violation of
the safety plan.
          On  August 30, 2006, OCS filed an emergency petition to
adjudicate Edward, Elliot, Eve, and Elan as children in  need  of
aid, stating that Neal and Lacey were unable to be protective and
assure safety in the home.  OCS alleged that Edward told a social
worker  that  Neal  often smoked crack with his  friends  in  the
bedroom  where  Edwards toys were, that Edward claimed  his  dads
friends  had been in and out of his house two hundred  times  and
that  they  had  spent the night more than ten  times,  and  that
Edward  reported feeling unsafe in the house because his  parents
let everyone in the house.
          OCS  placed  the  children in foster  care.   A  social
          worker later testified that Edward and Elliot suffered from a lot
of  delays  including  speech, medical, educational,  and  social
delays.
          In  September  2006  the  superior  court  granted  OCS
temporary custody of the four children, concluding that there was
probable cause to believe they were children in need of aid based
on Neals substance abuse.  Although Lacey and Neal were permitted
supervised  visitation with the children, OCS  claimed  that  the
parents  missed three visits in September and arrived at  another
visit  ten  minutes before it was to end.  The parents  allegedly
told OCS that they missed the visits because Lacey was sick or at
work and Neal was doing laundry.  Neal allegedly also stated that
it hurt too much to see the children.
          In  October  2006  Lacey agreed to a  new  safety  plan
making  her  the childrens sole care provider.  She  agreed  that
Neal  would not contact her or the children unless authorized  by
OCS.   Neal and Lacey were given a case plan that reiterated that
Lacey  should  not allow [Neal] to reside in her  home  with  the
children  present  and  should ensure that  the  children  attend
school on time.
          The  social  worker  helped  Lacey  obtain  shelter  by
referring her to Clare House, a thirty-day temporary shelter  for
homeless  women with children.  Laceys four children were  placed
with  her  at  Clare House in November 2006.  Later  that  month,
Lacey moved into an apartment with her children.  She completed a
Clare  House exit plan that indicated she did not wish to receive
follow-up  services from her Clare House case manager  after  her
discharge.
          In  December 2006 OCS received a report from a  teacher
and  special  education  supervisor that Edward  and  Elliot  had
stated  that  Neal  was back in the home. A social  worker  later
witnessed  Neal leaving the residence.  Based on Laceys violation
of  the  safety plan, OCS again removed the children  and  placed
them in foster care.
          In April 2007 Lacey gave birth to Emma, her fifth child
with  Neal.   A social worker created a safety plan  calling  for
Lacey  to move into Clare House with Emma when she was discharged
from  the hospital.  Lacey agreed and was admitted to Clare House
on  April  23.  OCS filed a non-emergency petition to  adjudicate
Emma a child in need of aid.
          Lacey  completed parenting classes on May 10.   But  an
OCS  social worker later testified that Lacey still was not  able
to  demonstrate that she could protect her children.  The  social
worker   then  referred  Lacey  for  counseling  at  Southcentral
Foundation.
          On  May  24,  2007, Clare House staff  discovered  that
Lacey  had  been meeting her boyfriend on the bus and giving  him
food  from the center.  Emma was reportedly present at the  time.
Four days later Clare House staff caught Lacey taking food out of
Clare  House  in  a coat-covered stroller.  Lacey later  admitted
that she was attempting to take the food to Neal.
          On  May  31,  2007, Laceys case manager at Clare  House
wrote a discharge letter for Lacey.  It indicated that the reason
for  the discharge was space limitations and the fact that  Lacey
was  not eligible for an extension.  An OCS social worker  stated
in  an affidavit that she was told Lacey was being asked to leave
due  to  her  non-compliance with the rules at Clare House.   OCS
obtained  an  order authorizing OCS to remove  Emma  from  Laceys
custody after Lacey reportedly disclosed that she could not think
of  any place to go where Emma would be safe.  OCS took Emma into
custody on June 1.
          Lacey moved to Glenallen and began living with Neal  in
June  2007.   It  was about this time that Lacey became  pregnant
with her sixth child, Elsa.  On July 2, 2007, OCS placed the five
children with Laceys maternal uncle in Pilot Point.  OCS arranged
for  Lacey  to  stay with another uncle in the same  village.   A
social  worker flew out with the children and Lacey and  provided
them with food and other necessities, such as clothing and beds.
          When  she moved to Pilot Point, Lacey had not yet begun
the  counseling  sessions  OCS required.   But  a  social  worker
testified  that she referred Lacey to a family service worker  in
Pilot  Point  who was willing to meet with Lacey  for  counseling
sessions.
          Lacey    testified   telephonically   at   a   mid-July
disposition  hearing  that she had met with  the  family  service
worker  and was told that counseling would begin after the worker
returned from a two-week vacation.  Lacey also testified that  if
she had to choose between Neal and her children, she would choose
[her]  kids  and  that she cant stand being  without  them.   She
testified  that  she would not let Neal have contact  with  their
children without scheduled visits and that she would turn him  in
to the local police if he showed up in Pilot Point.
          Lacey  never began therapy in Pilot Point.   She  later
testified  that she was unable to get counseling in  Pilot  Point
because  they  [didnt]  have qualified  people  down  there.   In
October  2007 Lacey moved back to Anchorage without telling  OCS.
Her  children remained in Pilot Point.  Lacey testified that  she
moved because she had no housing down there.  She told a licensed
clinical psychologist that she left Pilot Point because they have
brown water sometimes I went without electricity and water in the
house,  sometimes  no  propane.  Lacey also  allegedly  told  the
psychologist that she left Pilot Point to get an ultrasound.
          After returning to Anchorage, Lacey began counseling at
Southcentral Foundation in November 2007 in an attempt to  comply
with  her  OCS  case  plan.  During her intake assessment,  Lacey
indicated  that she was living with Neal, whom she  described  as
her  fianc‚,  and  described  their  relationship  as  excellent.
Although  she acknowledged that OCS did not want the children  to
live  with  Neal,  Lacey allegedly stated that  she  intended  to
continue  living with Neal even after she received custody.   The
intake   counselor   determined  that  Lacey   needed   parenting
techniques  to  regain  custody.  The  counselor  indicated  that
Laceys  prognosis  with  treatment  was  good,  even  though  she
recognized  that  Laceys attitude towards treatment  as  an  OCS-
imposed  requirement might become a barrier  to  treatment.   The
counselor   recommended  that  Lacey  participate  in  individual
therapy.
          Meanwhile,  Neal continued to struggle  with  substance
abuse.   Of the eleven urinalysis appointments he had in November
2007,  he  failed  to show up for seven and tested  positive  for
cocaine  at the other four.  Salvation Army Clitheroe Center  had
performed a substance abuse assessment on Neal in July  2007  and
observed   that  Neal  demonstrated  a  lack  of  awareness   and
understanding   regarding  addiction  and  would   benefit   from
receiving  substance  abuse treatment.   Although  Neal  was  not
appropriate  for  treatment  at  Clitheroe,  the  counselor   who
evaluated  Neal recommended that he seek treatment at a  facility
like  Akeela House that could address his history of criminality,
antisocial  behavior/traits, denial, and thinking errors.   There
is no evidence Neal participated in the recommended treatment.
          In  December 2007 OCS petitioned the superior court  to
terminate  Lacey and Neals parental rights as to the five  oldest
children.   OCS alleged that Neal had not addressed his  problems
with   substance  abuse,  neglect  of  the  children,  and  anger
management; OCS also alleged that Lacey continues to be unable or
unwilling to protect the children from [Neal].
          In  February 2008 Lacey gave birth to Elsa,  her  sixth
child with Neal.  OCS assumed temporary custody of Elsa.  An  OCS
social worker later testified that she had given Lacey the option
of returning to Pilot Point after OCS assumed custody of Elsa but
that Lacey wasnt willing to go.
          Although  Lacey later testified that she and  Neal  had
broken  up  a  couple  weeks before Elsa  was  born,  the  record
indicates  they  were still associating after Elsas  birth.   The
superior  court  observed  that the  return  of  service  on  the
petition OCS filed to adjudicate Elsa as a child in need  of  aid
showed  that Lacey and Neal were both at Beans Caf‚ on March  10,
2008  when  they were served.  And Neal described  Lacey  as  his
fianc‚e during a March 21 intake assessment.
          A  probable cause hearing for Elsa was held on February
29,  2008.  The superior court held that there was probable cause
to find that Elsa was a child in need of aid and that removal was
warranted for the same reasons that justified removing  the  five
older  children.   The  court  asked  an  OCS  social  worker  to
articulate  her  expectations for Lacey  and  Neal.   The  social
worker  explained that OCS would ask Lacey to abstain from having
a relationship with Neal if he continued to be non-compliant with
his case plan.  She stated that her goal for Lacey was to get her
really  active in her therapy in order to help her  overcome  her
dependency  on Neal and realize that leaving Neal was a  decision
that [Lacey] will have to make.
          Lacey continued to receive counseling through May  2008
and   completed  the  eight  sessions  OCS  required  plus  three
additional  sessions.  An OCS social worker observed  that  Lacey
began to show some progress around May 2008 when she claimed that
she  would  discontinue contact with Neal,  move  back  to  Pilot
Point,  and  get her children back.  But the social worker  later
testified that Lacey never followed through on those intentions.
          In  June  2008  Neal was driving Laceys  car  when  the
police  stopped him because of a defective headlight.  Neal,  who
had  a  suspended  license  and  two  outstanding  warrants,  was
arrested  and taken to the Anchorage Correctional Complex.  Lacey
visited Neal nine times between June 4 and June 14 and identified
herself as Neals fianc‚e during her visits.  Lacey testified at a
June  20  placement  review hearing that she  self-identified  as
Neals  fianc‚e just so she wouldnt have to go through  a  lot  of
talk.   Lacey testified that she and Neal were no longer involved
and that they had not lived together since February 2008.  But in
mid-July 2008 Lacey posted Neals fifty-dollar bail after  he  was
charged with vehicle tampering.
          A  three-day termination trial was held in August 2008.
Neal testified at the trial and admitted that he continued to use
cocaine  and  that,  despite seeking treatment  on  a  number  of
occasions, he had failed to complete his treatment plan.
          Dr.   Melinda   Glass,  a  clinical  psychologist   who
evaluated  Lacey in June and July 2008, testified  as  an  expert
witness  at the termination trial.  Dr. Glass testified that  she
did  not believe Lacey would keep her children away from Neal  or
that  she would discontinue her relationship with him.  Dr. Glass
testified that, although Lacey had stated that she was willing to
do  anything to get her children back, Lacey had not demonstrated
any such willingness on a concrete level.
          The  superior court concluded that there was clear  and
convincing evidence that all six children were children  in  need
of  aid  based on Neals substance abuse and Laceys neglect.   The
court found that:
          [Lacey]  has engaged in conduct that subjects
          the children or has subjected the children in
          this household to neglect, and the neglect is
          not  so  much  of  neglect as  a  parent  but
          neglect  in  the  way  of  being  unable   or
          unwilling to prevent [Neal] . . . from  being
          around the children.
          
The  court found that it was unlikely that the children could  be
returned to Lacey within a reasonable time because she had chosen
to be involved with Neal and would likely continue to be involved
with him in the foreseeable future.4
          The  court  also  concluded that there  was  clear  and
convincing  evidence  that  OCS had made  active  and  reasonable
efforts to reunify the family, which proved unsuccessful.  As  to
Lacey,  the  court noted that providing the Clare House  services
and  sending  Lacey and the children to Pilot  Point  where  they
would be separated from Neal was sufficient to meet the statutory
standard.   The  court  accordingly terminated  Lacey  and  Neals
parental rights to their five eldest children and adjudicated the
youngest child, Elsa, as a child in need of aid.
          Lacey  appeals the termination of her parental  rights.
Neal  joins in Laceys appeal but does not argue that the superior
court erred by terminating his parental rights.
III. DISCUSSION
     A.   Standard of Review
          Whether  the  superior courts factual findings  comport
with  ICWA and are sufficient to support termination of  parental
rights  under the Child in Need of Aid (CINA) statutes and  rules
are  questions  of  law that we review applying  our  independent
          judgment.5  Whether the state has complied with ICWAs active
efforts requirement presents a mixed question of law and fact.6
          We  will  reverse the factual findings of the  superior
court  in  a termination of parental rights case only when  those
findings are clearly erroneous.7  This standard is met only if we
are  left with a definite and firm conviction that a mistake  has
been  made  after review of the entire record.8  In  reviewing  a
superior  courts determination to terminate parental  rights,  we
bear  in mind at all times that terminating parental rights is  a
drastic measure.9
     B.   Were  the  Children in Need of Aid in Part  Because  of
          Laceys Neglect?
          
          Lacey   argues  that  the  superior  court   erred   in
concluding  that her children were in need of aid  based  on  her
neglect.   She contends that she did everything that OCS required
of  her  by  completing  parenting classes, attending  counseling
sessions,  and recognizing that Neal could not be around  her  or
the children until he resolved his drug problem.10
          The  superior court may find a child to be a  child  in
need  of aid if it finds by a preponderance of the evidence  that
the  child has been subjected to conduct by or conditions created
by  the parent, guardian, or custodian [that] have subjected  the
child  or another child in the same household to neglect.11   The
court may find neglect if the parent
          fails  to  provide  the child  with  adequate
          food,  clothing, shelter, education,  medical
          attention,   or   other  care   and   control
          necessary for the childs physical and  mental
          health  and  development, though  financially
          able  to do so or offered financial or  other
          reasonable means to do so.[12]
          
          The  superior court found clear and convincing evidence
that  Lacey and Neals children were in need of aid based in  part
on  conditions  created by Lacey and Neal that had subjected  the
children  to  neglect.  The court based this finding on  evidence
that:  (1) Edward and Elliot missed almost eighty days of  school
during  the 2005-2006 school year, reportedly because the parents
overslept;  (2)  on  August 18, 2006, Neal  tested  positive  for
cocaine  after  an OCS social worker found six to  seven  unknown
adults  smoking something other than cigarettes in the  apartment
while the children were home; (3) the parents missed visits  with
the  children after OCS assumed custody; and (4) Edward,  Elliot,
and  Eve  suffered from significant delays in speech  and  verbal
skills  and required dental care when they entered state  custody
in 2006.
          Lacey  does not argue that these findings were  clearly
erroneous, and each is amply supported by the evidence  discussed
in Part II, above.
          Moreover, evidence discussed in Part II concerning  the
August  18,  2006 family-home incident raises grave doubts  about
Laceys  ability  to provide the care and control needed  for  her
childrens physical and mental health and development.
          In Audrey H. v. State, Office of Childrens Services, we
stated  that  the  superior court, when determining  whether  the
child  has suffered from neglect, may consider a childs  exposure
to  drug use.13  We held that the superior court did not  err  by
concluding  that  the mother had failed to provide  her  children
with  the care and control necessary for their mental health  and
development, in part because she exposed her children to  illegal
drug use and open sexual activity.14
          The  August  18,  2006 incident similarly  demonstrates
that  Lacey failed, on at least one occasion, to provide the care
and  control  necessary for her childrens health and development.
Lacey  may  not  have invited the individuals into  her  home  to
engage in what was likely illicit drug use, but she seemed unable
(or unwilling) to prevent the occurrence from happening.
          Laceys  arguments that she complied with her case  plan
and  admitted  that  Neal had a drug abuse  problem  have  little
bearing on the children-in-need-of-aid finding.
          We  conclude, as OCS argues, that there was  more  than
sufficient evidence to demonstrate that Lacey and Neals  children
were  children in need of aid based on neglect, that the evidence
demonstrates  that  Lacey  failed to provide  the  children  with
adequate education, medical attention, or other care and  control
necessary  for their physical and mental health and  development,
and  that  the  superior  court correctly concluded  that  Laceys
inability or unwillingness to prevent Neal from being around  the
children amounted to neglect.  The record contains ample evidence
supporting  the  superior courts finding by clear and  convincing
evidence that all six children were in need of aid based in  part
on Laceys neglect.
          Lacey  also  challenges particular evidence bearing  on
the  courts  child-in-need-of-aid finding.  She argues  that  Dr.
Glass improperly based her opinion of Laceys parenting ability on
Laceys  decision  to  leave Pilot Point and return  to  Anchorage
without  her children.  Dr. Glass testified that Laceys  decision
to  leave her children in Pilot Point demonstrated that,  despite
her  stated willingness to do anything to get her children  back,
Lacey  had  not  historically done what it would take  to  regain
custody.  On cross-examination, Dr. Glass acknowledged that Lacey
claimed  she left Pilot Point to obtain counseling services  that
she  could  not get in the village.  But Dr. Glass then testified
that,   even  if  Lacey  was  faced  with  competing  case   plan
requirements,   she  should  have  discussed   with   OCS   which
requirement was to have priority.
          Lacey  asserts that she left Pilot Point  only  because
she  could not obtain counseling services there.  She argues,  at
least  implicitly, that she moved back to Anchorage  to  complete
her case plan requirements.  She contends that it is not fair  to
place  her  in  a  Catch 22 situation, in which her  attempts  to
comply with OCSs requirements help support the termination of her
parental  rights.  She accordingly asks that the  termination  be
reversed  and that on remand her decision to return to  Anchorage
not be used to support terminating her parental rights.
          The  superior  court did not expressly  mention  Laceys
decision to leave Pilot Point in 2007 when it determined that the
          children were still in need of aid.  But it seems to have
considered  this fact in its active efforts analysis,  and  noted
that  OCS  had attempted to create a physical separation  between
Lacey  and  Neal  by relocating Lacey and her children  to  Pilot
Point.  It then found that Lacey chose to return to Anchorage  in
October 2007 rather than reside near the children.
          It  was not error to allow OCS to elicit evidence  that
Lacey  left  Pilot Point to return to Anchorage in 2007,  and  it
appears  OCS is correct in arguing that Lacey did not  object  to
Dr.  Glasss  testimony  in  this  regard.   Even  assuming  Lacey
relocated  to  get  OCS-mandated counseling, there  was  a  valid
dispute  whether, as Dr. Glass also testified, Lacey should  have
sought clarification from OCS before moving back to Anchorage.
          Moreover,  there  was conflicting  evidence  about  why
Lacey returned to Anchorage.  She claimed she left to complete  a
counseling  requirement  that could not  be  satisfied  in  Pilot
Point, but there was evidence permitting a contrary finding.   An
OCS  social worker testified that she referred Lacey to a  family
service worker in Pilot Point who was willing to meet with  Lacey
for  counseling.  Lacey testified in mid-July that she  met  with
the  family service worker and was told that her counseling would
begin  after the family service worker returned from  a  two-week
vacation.   And when she was asked at a placement review  hearing
why  she moved back to Anchorage, Lacey testified: Because I have
no  housing  down there and I was looking for housing down  here.
She  later  told Dr. Glass that she left Pilot Point because  she
needed  an ultrasound and because they have brown water sometimes
I  went without electricity and water in the house, sometimes  no
propane.
          This  conflicting evidence raised credibility  disputes
to  be resolved by the superior court.  The court appears to have
weighed Laceys decision to relocate from Pilot Point against her.
The  record provides support for the implicit finding that Laceys
decision to leave Pilot Point was inappropriate.

     C.   Was There Clear and Convincing Evidence OCS Made Active
          and  Reasonable Efforts To Prevent the Breakup  of  the
          Indian Family?
          
          Lacey  argues that the superior court erred in  finding
that  OCS  made  active  and reasonable efforts  to  prevent  the
breakup  of  the  Indian family.  She contends  that  the  courts
active-and-reasonable-effort analysis ended  when  OCS  relocated
her to Pilot Point, and that the findings do not reflect that OCS
effectively abandoned her after the relocation.  Lacey appears to
argue  that OCS should have, first, determined whether there  was
any  additional  treatment  available  in  Anchorage  that  would
benefit her and, second, provided her with any such treatment.
          ICWA   requires  that  before  a  court  may  terminate
parental  rights,  it must find by clear and convincing  evidence
that  active efforts have been made to provide remedial  services
and  rehabilitative programs designed to prevent the  breakup  of
the   Indian   family   and  that  these  efforts   have   proved
unsuccessful.15   We  have held that no pat  formula  exists  for
          distinguishing between active and passive efforts and have
adopted a case-by-case approach for active efforts analysis.16  We
have  nevertheless  recognized the following distinction  between
active and passive efforts:
          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, the intent of the drafters of
          the  Act, is 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 what is perceived to  be  a
          boyfriend who is a bad influence, the  Indian
          Child  Welfare  Act would  require  that  the
          caseworker  help the client develop  job  and
          parenting skills necessary to retain  custody
          of her child.[17]
          
          In  evaluating whether the state met its active efforts
burden,  the  court may consider a parents demonstrated  lack  of
willingness to participate in treatment.18  Courts also  look  to
the  states involvement in its entirety.19  In Maisy W. v. State,
Department  of  Health  & Social Services,  Office  of  Childrens
Services,  we  affirmed  a  termination  even  though  the  state
conceded  it  had  not made active efforts during  a  three-month
period.20   We concluded that the entirety of the states  efforts
after   it   first   became  involved  met  the  active   efforts
requirement.21  We similarly held in E.A. v. State,  Division  of
Family  &  Youth Services that the states failure to make  active
efforts during one seven-month period was insignificant in  light
of   the  extensive  remedial  efforts  the  state  has  provided
throughout its involvement.22
          The  superior court here concluded that there was clear
and  convincing  evidence  that OCS made  active  and  reasonable
efforts to prevent the breakup of the Indian family.  In support,
the court made these findings:
          a.   [An    OCS    social   worker]   offered
               assistance to the family between May and
               August  2006 by providing wake-up calls,
               an    alarm    clock,    transportation,
               assistance with benefits, food, diapers,
               household goods, bus pass, PIC referral,
               Head    Start    referral,    and    job
               applications.
               
          b.   A Care and Safety Plan was signed by the
               parents   on  August  18,  2006,   which
               required [Neal] to leave the home so the
               children  could remain in the home  with
               [Lacey].  The plan failed because [Neal]
               returned to the home.
               
          c.   [Neal] was referred to urinalysis.
               
          d.   [Neal] was referred to Clitheroe  for  a
               substance    abuse    assessment.     He
               completed  an  assessment  on  July  27,
               2007.    He  was  diagnosed  as  cocaine
               abuse/rule  out  cocaine  dependent  and
               recommended for treatment.
               
          e.   The children were placed with [Lacey] at
               Clare   House  on  November   3,   2006.
               [Lacey] obtained housing for herself and
               the  children as part of a second  trial
               home  visit.   The plan  failed  because
               [Neal] returned to the home.
               
          f.   [Neal]   completed   a   mental   health
               assessment with [a licensed marriage and
               family therapist].
               
          g.   [Neal]  attended  some anger  management
               classes   at   Southcentral  Foundations
               Fathers Journey Program.
               
          h.   [Elsa] was placed with [Lacey] at  Clare
               House on April 21, 2007.
               
          i.   [Lacey]    attended    counseling     at
               Southcentral Foundation between November
               2007  and  May  2008.  [Lacey]  reported
               that  she  did  not  see  the  need  for
               treatment and was only attending to  get
               her  children  back.  In November  2007,
               [Lacey]  reported that when she regained
               custody  of  her  children,  she   would
               reside with the childrens father.
               
          j.   Both parents attended parenting classes.
               Lacey  completed  a parenting  class  at
               Alaska Youth and Family Network (AYFN).
               
          k.   [Neal]    attended    substance    abuse
               assessments at Clitheroe and Cook  Inlet
               Tribal Council (CITC) Recovery Services.
               In  March  2008, CITC diagnosed  him  as
               cocaine    dependent   and   recommended
               intensive   outpatient  treatment,   but
               [Neal] did not participate in treatment.
               
          l.   In  July 2007, the children were  placed
               with  relatives in Pilot Point.  [Lacey]
               was allowed to reside in Pilot Point and
               have   unlimited   contact   with    the
               children.   The  department  created   a
               physical separation between [Lacey]  and
               [Neal],  but [Lacey] chose to return  to
               Anchorage  in October 2007  rather  than
               reside  near the children.  She reunited
               with [Neal].
               
(Internal citations omitted.)

          Lacey  does  not argue that these findings are  clearly
erroneous.   Contrary  to her argument that the  superior  courts
analysis ended when OCS relocated her to Pilot Point, the  courts
findings  note  that  Lacey received counseling  at  Southcentral
Foundation through May 2008, after she left Pilot Point. OCS also
resolved  disputes between Lacey and the foster family  in  Pilot
Point and paid for Lacey and the children to remain in telephonic
contact after Lacey returned to Anchorage.
          OCSs  involvement  with Lacey and Neal  from  May  2006
until  May  2008  demonstrates that OCS did not  expect  them  to
satisfy  the case plan without assistance.  Although OCS expected
Lacey  to  become  a  more  protective parent  and  to  learn  to
appreciate the dangers of Neals drug abuse, OCS attempted to help
her  develop  the  skills and mental resolve to accomplish  those
things through parenting classes and counseling sessions.
          The  superior  court  found  that  these  efforts  were
unsuccessful.   It  noted  that Lacey and  Neal  remain  together
despite  [Laceys]  assertions to the  contrary,  and  that  Lacey
continued  to  be  unable  or unwilling to  parent  the  children
without  [Neal]  in  the home.  The court  further  found,  after
relying on Dr. Glasss testimony, that Lacey does not perceive any
danger  to  the  children  related  to  the  home  conditions  or
parenting and has no desire to change.
          Looking  at the totality of the efforts made, we  agree
with  OCS  and  hold  that the superior  court  did  not  err  in
concluding  that OCS made active efforts to identify and  provide
remedial  services that ultimately happened to  be  unsuccessful.
We also hold, as OCS contends, that OCS did not abandon Lacey but
continued to make ongoing efforts through the summer of  2008  by
identifying  a  mental health services provider in  the  village,
communicating with Laceys counselors in Anchorage,  and  ensuring
that  Lacey  kept  in  telephonic contact with  her  five  oldest
children even after she left Pilot Point.23
          We  therefore conclude that the superior court did  not
err in holding that OCSs efforts were active and reasonable.
IV.  CONCLUSION
          For  these reasons, we AFFIRM the termination of Laceys
parental rights.
_______________________________
     1    Pseudonyms are used for all family members.

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

     3     Neal  was  convicted of sexual assault  in  the  first
degree  in  1988.  This conviction is unrelated  to  the  present
case.

     4    Clare Houses records, which were admitted into evidence
at Laceys disposition hearing, indicate that Lacey had previously
stayed  at  the  facility in December 2005.  The  superior  court
noted  that there were reports in Laceys file from her past stays
that  tended  to show her inability to supervise her children  on
her  own.   Staff members documented one instance in which  Lacey
was  sleeping  on the floor with one child while Eve,  then  two-
years old, was running wild around the room after pulling off her
diaper and urinating on the floor.  Elan, about two months old at
the  time, was lying in her basinet with a wet diaper and spit-up
running  down her mouth.  Clare House staff remarked  that  Lacey
seem[ed] to have no clue what to do with her kids.  Another time,
one of Laceys children pushed open an emergency exit door due  to
lack  of  supervision.  The superior court relied on these  staff
reports  in finding that Lacey was unable to adequately supervise
the  children in the sheltered environment of Clare  House.   The
court  used  this  finding as support for  its  failure-to-remedy
analysis, which Lacey does not seem to contest on appeal.

     5     Rick  P.  v. State, OCS, 109 P.3d 950, 954-55  (Alaska
2005)  (CINA);  L.G. v. State, Dept of Health & Soc.  Servs.,  14
P.3d  946, 950 (Alaska 2000) (ICWA); see also Martin N. v. State,
Dept  of Health & Soc. Servs., Div. of Family & Youth Servs.,  79
P.3d  50, 53 (Alaska 2003) (explaining that when engaging  in  de
novo  review,  this court adopts the rule of  law  that  is  most
persuasive in light of precedent, reason, and policy (citing Guin
v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979))).

     6     J.S.  v. State, 50 P.3d 388, 391 (Alaska 2002) (citing
A.A.  v. State, Dept of Family & Youth Servs., 982 P.2d 256,  259
(Alaska 1999)).

     7     Martin  N.,  79  P.3d  at 53 (When  reviewing  factual
findings,  [this  court views] the evidence  in  the  light  most
favorable to the party prevailing below.  (quoting In re J.L.F. &
K.W.F., 828 P.2d 166, 170 n.12 (Alaska 1992), superseded on other
grounds by statute, ch. 99,  1, SLA 1998)).

     8    Id. (internal citation omitted).

     9     Karrie B. ex rel. Reep v. Catherine J., 181 P.3d  177,
184  (Alaska  2008)  (internal quotation marks omitted)  (quoting
Martin N., 79 P.3d at 53).

     10     To terminate parental rights to Indian children,  the
superior  court  must find: (1) by clear and convincing  evidence
that  the  child  has  been subjected to  conduct  or  conditions
described  in AS 47.10.011; (2) by clear and convincing  evidence
that the parent has not remedied the conduct or conditions in the
home  that  place the child at substantial risk of harm,  or  has
failed,  within  a  reasonable time, to  remedy  the  conduct  or
conditions  in the home that place the child at substantial  risk
of  physical  or  mental  injury; (3)  by  clear  and  convincing
evidence  that active efforts have been made to provide  remedial
services  and  rehabilitative programs designed  to  prevent  the
breakup  of the Indian family and that these efforts have  proved
unsuccessful; (4) by evidence beyond a reasonable doubt that  the
continued  custody of the child by the parent or Indian custodian
is  likely  to result in serious emotional or physical damage  to
the  child;  and  (5)  by a preponderance of  the  evidence  that
termination  of parental rights is in the best interests  of  the
child.   25 U.S.C.  1912(d), (f) (2006); AS 47.10.088; CINA  Rule
18(c);  Maisy W. v. State, ex rel. Dept of Health & Soc.  Servs.,
Office  of  Childrens Servs., 175 P.3d 1263, 1268 (Alaska  2008);
Gilbert M. v. State, 139 P.3d 581, 589-90 (Alaska 2006); Carl  N.
v.  State, Dept of Health & Soc. Servs., Div. of Family  &  Youth
Servs., 102 P.3d 932, 935 (Alaska 2004).  The superior court here
addressed  all five requirements.  Laceys appeal challenges  only
the first and the third required findings as listed here.

     11    AS 47.10.011(9).

     12    AS 47.10.014.

     13     Audrey  H. v. State, Office of Childrens Servs.,  188
P.3d 668, 675 (Alaska 2008).

     14    Id. at 675.

     15    25 U.S.C.  1912(d) (2006); CINA Rule 18(c)(2)(B).

     16    A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 261 (Alaska 1999) (internal quotation marks omitted) (citing
A.M. v. State, 945 P.2d 296, 306 & n.12 (Alaska 1997)).

     17     Id. at 261 (quoting Craig J. Dorsay, The Indian Child
Welfare  Act  and Laws Affecting Indian Juveniles  Manual  157-58
(1984)).

     18    Maisy W. v. State, Dept of Health & Soc. Servs., Office
of  Childrens Servs., 175 P.3d 1263, 1268 (Alaska 2008)  (quoting
N.A. v. State, DFYS, 19 P.3d 597, 603 (Alaska 2001)).

     19    Id. at 1268.

     20    Maisy W. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 175 P.3d 1263, 1269 (Alaska 2008).

     21    Id. at 1269.

     22     E.A. v. State, Div. of Family & Youth Servs., 46 P.3d
986, 990 (Alaska 2002).

     23     The  Native  Village of Pilot Point  filed  a  notice
joining in the arguments made in OCSs brief of appellee.

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC