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

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

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

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


                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

BILL  S.  and  CLARA  B.,                                     )  

                                                              )     Supreme  Court  Nos.  S-16998/17002  

                             Appellants,                      )  


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




                                                               )    00002 CN  



STATE OF ALASKA, DEPARTMENT                                                            

                                                              )     O P I N I O N  


OF HEALTH & SOCIAL SERVICES,                                      




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


                             Appellee.                        )



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


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


                   Appearances:              Alexander         T.   Foote,   Assistant   Public  


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


                   Appellant  Bill   S.            Megan  R.  Webb,  Assistant  Public  


                   Defender, and Quinlan Steiner, Public Defender, Anchorage,  


                   for  Appellant  Clara  B.                Mary  Ann  Lundquist,  Senior  


                   Assistant Attorney General, Fairbanks, and Jahna Lindemuth,  

                                                                                       Lisa   Wilson,  

                   Attorney  General,  Juneau,  for  Appellee.  

                   Assistant  Public  Advocate,  Anchorage,  Guardian  Ad  Litem.  

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

                   and  Carney,  Justices.  

                    STOWERS,  Justice.  

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

I.          INTRODUCTION  

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


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


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


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


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


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




            A.           The Family And OCS Involvement  


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


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


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


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


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


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


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


alleged physical abuse of Noah.  


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


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


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

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

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

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


Indian tribe.").   

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


                                                                             -2-	                                                                     7335

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

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

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

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

                                                                                                                              4 but they were later moved  

the island, in accordance with ICWA placement preferences,                                                                                                               

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


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


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


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


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


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


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


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


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


              3             (...continued)  

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


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



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


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


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


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


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


meet the Indian child's needs.").  

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


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


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


                                                                                         -3-                                                                                 7335

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

substance abuse assessment.                                  6  

                             During the adjudication hearing the superior court issued warnings to both  


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


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


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


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


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


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


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


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


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


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


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


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

services to Noah and Olwen                                                                                                                                                         


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


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


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

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

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

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

recall being offered a substance abuse evaluation during his incarceration.                                                       

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


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


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


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


                                                                                          -4-                                                                                 7335

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

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

consistent those services were.                                                          

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

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

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

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

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

OCS petitioned to terminate their parental rights in August 2017.                                                                                                                                                  

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

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

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

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

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

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

                                                                                                                         8       The court also heard testimony from the chief of  

or physical damage to the child."                                                                                                                                                                                                                                                                          

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


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


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


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


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


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


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


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




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

                                                                                                                                                     -5-                                                                                                                                                        7335  

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


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


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


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


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


and the Tribe:  


                              Fromtheinitial removal both parents exhibited serious  


                    problems with alcohol, marked by regular episodes of mutual  


                    domestic violence, nearly always when intoxicated.  [Clara]  


                    and [Bill]would occasionallysuperficiallyacknowledgetheir  


                    problems, but would soon return to longer periods of denial  


                    and relapse.  


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


                    removal,         although        [Bill]   was        incarcerated   off   island  


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


                    of  tribal  representatives,  both  [parents]  obtained  alcohol  


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


                    resources on the island.  There is only an outpatient program  


                    available.          Each  parent  would  attend  sessions  [of  the  


                    outpatient program]intermittently. Neither parentcompleted  


                    the program and the sessions that each did attend had little  


                    impact on either parent.  


                              Although noassessment calledfor inpatient treatment,  


                    the  OCS  social  worker  tried  to  convince  [Clara]  that  


                    outpatient  treatment  was  not  sufficient.                         [Clara]  would  


                    occasionally  express  a  willingness  to  enter   residential  


                    treatment.   She did apply to one residential program (Old  


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


                    willing to enter the program to satisfy OCS.  The program  


                    found her to be inadequately motivated.  At other times she  


                    conditioned her enrollment in residential treatment on [Bill]  


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


                    unwilling  to  pull  the  children  from their  foster  homes  or  


                    disrupt their ongoing schooling.  

                                                                -6-                                                         7335

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                              While        [Bill]      was      incarcerated          he      was      given  


                    opportunities  to  obtain  treatment  for  alcohol  abuse.                             He  


                    would  either  decline  or  put  forth  so  little  effort  that  the  


                    treatment had little impact.  Both OCS and tribal authorities  


                    visited   [Bill]   while   he   was   incarcerated   in   hopes   of  


                    convincing him to engage in needed and available treatment  


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


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


                               OCS and tribal authorities encouraged both parents  


                    and  especially  [Clara]  to  attend  counseling  regarding  the  


                    impact of domestic violence on children. There were limited  


                    classes  available  on  St.  Paul.                    However,  both  parents  


                    continued to deny that domestic violence was a problem in  


                    their  relationship  or  that  either  child  might  be  at  risk  of  


                    physical or emotional harm from being the target of such  


                    violence or witnessing it.  


                              Neither  parent  was  willing  to  move  from  St.  Paul  


                    despite OCS and tribal authorities recommending that each  


                    do  so  in  order  to  gain  access  to  greater  rehabilitative  


                    resources elsewhere. The children were placed with relatives  


                    in Wasilla and Juneau after OCS removed them from the  


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


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


                    the children were in Wasilla, the parents were so intoxicated  


                    at a hotel that in-person visits were suspended.  


                              Both OCS and the tribe had worked with both parents  


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


                    beforetheremoval in 2015. Although [the caseworker]could  


                    not  identify  exact  dates,  she  recalled  OCS  and  tribal  


                    involvement with the parents for alcohol abuse and domestic  


                    violence   since   [Noah]   was   a   toddler   and   during   the  


                    pregnancy with [Olwen] in 2012.  


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


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


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

                                                                -7-                                                         7335

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


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


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


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


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


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


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


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


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


case about [its] required active efforts."  


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


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


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


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


of behavior for years:  


                    They abuse alcohol several times a month and engage in very  


                    serious  domestic  violence  against  each  other  and  family  


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


                    alcohol treatment.  They refuse to engage in any classes or  

                    counseling about domestic violence.  They have done little,  


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


                    removed their children from their homes for over two years.  


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


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


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


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


Both parents appeal the court's active efforts finding.  

                                                               -8-                                                         7335

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

III.         STANDARD OF REVIEW                  

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


question of law and fact."                                                                                                                                 

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


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



CINA rules and ICWA." 

IV.          DISCUSSION  


             A.          Active Efforts Under ICWA  


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


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


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



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


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



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


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

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

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

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

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


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


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


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


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


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


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


                                                                               -9-                                                                        7335

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

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

plan] to fruition.' "                13  

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


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


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


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


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


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


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


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


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



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


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

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

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


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


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


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


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


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


              16           25 C.F.R.  23.2.  


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


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


                                                                                  -10-                                                                           7335

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


generalized" to demonstrate active efforts by                                                                                         clear andconvincing                                            evidence.                                        



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


                                         OCS Made Active Efforts.  


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


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


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


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


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


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



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


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

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

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

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

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

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

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

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

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

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

decide that issue at this time.                                          

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


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


                                                                                                                              -11-	                                                                                                                      7335

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


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

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


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


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


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


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


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


relied primarily on the caseworker's testimony.  


                          The caseworker testified that OCS involvement "was ongoing through the  


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


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


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


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


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


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


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


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


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


efforts entailed.  


                          The caseworker's testimony throughout thetermination trialis riddled with  


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


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

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

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

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


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


                                                                               -12-                                                                          7335

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

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

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

                                                                                                  23   Here, OCS recommended inpatient  

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

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


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


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


afterward to confirm their attendance?  OCS recommended domestic violence classes  


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


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


unclear on the record before us.25  


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


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


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


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


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


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


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

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

             24            The  OCS  caseworker  testified  Bill  and  Clara  completed  the  domestic  


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


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


such a service.  


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


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


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



                                                                                  -13-                                                                            7335

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


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

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

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

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

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

reunify the family.                              

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

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


 efforts in detail in the record.                                                                                                                                                                                                                                                                                                                             

                                                                                                                                          While documentation is related to OCS's duty to make  


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



                                                                                                                                                                                                        rather, it is a mechanism for OCS and the  

 documentation is not itself an "active effort"; 

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


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

                                                          in treatment may be considered in determining whether the                                                                                                                                                                                           

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

                                                          parent or obtain information from her may qualify as active                                                                                                                                                                             

                                                          efforts iftheparent's                                                                   evasiveor                                   combativeconduct "rendered                                                          

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

                                                          parent has a long history of refusing treatment and continues                                                                                                                                                           

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

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

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

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

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

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

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


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



                                                                                                                                                                                  -14-                                                                                                                                                                          7335

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


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


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


CINAstatutealso requires OCSto document its provision offamilyreunification support  

                    31                                                                                                                     32  

                          But such documentation is woefully missing here.                                                                       


               28             (...continued)  


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


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


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


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


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


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

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


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

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

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

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

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

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

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

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


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


               31             AS 47.10.086(a)(3).  


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


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


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


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


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


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


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


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



                                                                                             -15-                                                                                       7335

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

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

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

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

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

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

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


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


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


              32            (...continued)  


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


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


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


superior court to take notice of earlier testimony.  


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


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


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


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


OCS's efforts during the intervening twenty months.  

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


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


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


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


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


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


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


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


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


case, it was not sufficient.  


                                                                                      -16-                                                                                 7335

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

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



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


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


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


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


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


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


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


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


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

V.        CONCLUSION  


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


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


this case for further proceedings consistent with this opinion.  

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

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

                                                            -17-                                                           7335  

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