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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilson W. v. State, Office of Children's Services (06/13/2008) sp-6274
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
| WILSON W., | ) |
| ) Supreme Court No. S- 12828 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3PA-06- 00055/56/57/58 CN |
| ) | |
| STATE OF ALASKA, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6274 - June 13, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Kari C. Kristiansen, Judge.
Appearances: Doug Moody, Assistant Public
Defender and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. Megan R.
Webb, Assistant Attorney General, Anchorage,
and Talis J. Colberg, Attorney General,
Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. A father appeals the superior courts finding that his
four children are children in need of aid. In 2006 the Office of
Childrens Services (OCS) removed the children after investigating
an incident of domestic violence and after the father
subsequently threatened OCS social workers. The parents were
unwilling to cooperate with OCS following the removal; OCS thus
formed a case plan without their input. The superior court found
that the children are in need of aid and that OCS made active
efforts to reunite the family as required by the Indian Child
Welfare Act (ICWA). Because we conclude that the state made
active efforts despite the fathers repeated refusal to cooperate
and his threats of violence against OCS caseworkers, we affirm
the superior courts decision that these children are children in
need of aid.
II. FACTS AND PROCEEDINGS
A. Facts
1. Background
Wilson and Sarah have four children together: Wes (born
in 1992), Marco (born in 1996), Dustin (born in 2000), and Skyla
(born in 2002).1 The children are Indian children under ICWA.
The family lives in Trapper Creek.
According to neighbors, members of the community,
police officers, and his children, Wilson is an extremely violent
man who has abused Sarah throughout their relationship. Wilson
has had several convictions for assaulting Sarah. From 1995 to
2006 OCS investigated eleven alleged incidents of domestic
violence between Wilson and Sarah. Six of these allegations were
substantiated.
Allegations of Wilsons abuse extend to abuse of the
children as well. After Wes once told a state trooper that he
had been in pain from being swatted, hit in the head . . . by
[Wilson], the state trooper filed charges against Wilson for
assault in the fourth degree. Two years later, during an OCS
interview with the three boys, they reported that Wilson abused
all four children. He hit Wes and Marco with a closed fist; he
hit Dustin and Skyla with an open hand; and he disciplined the
children using a belt, which left bruises.
From 1998 until OCSs ultimate removal of the four
children in 2006, multiple reports were filed with OCS. OCS
first became involved with the family in 1998 after Wilson was
convicted for assaulting Sarah. Sarah briefly followed through
with a referral to Family Support Services, but Wilson refused to
work with Family Support Services. OCS described him as
resistant to the idea. In 2002 OCS again offered services to
Wilson after Sarah was hospitalized in a poisoning incident but
he again refused. In 2003 a child development associate for the
childrens school district filed a report with OCS after Sarah
admitted that Wilson had been abusing her. Later in 2003 a
police officer filed a report with OCS due to Sarahs visible
injuries and Wess statements that Wilson had also abused him. In
2005 Dustins school filed a report of harm with OCS concerning
Dustin. The investigation did not proceed because Wilson and
Sarah refused to allow OCS onto their property.
2. Removal
On October 25, 2006, Sarah called a domestic violence
crisis line after an argument with Wilson. OCS received a report
of harm of domestic violence in the household and undertook an
investigation. This report indicated that both [Sarah] and
[Wilson] were physically assaulting each other, that [Wilson] was
[verbally abusing Sarah] and threatening to hit her every time
she started up again. According to the report both [Sarah] and
[Wilson] expressed frustration at lack of access to medical and
mental health resources due to their remote location.
Two days later, on October 27, OCS sent Child Services
Specialist Paula Jones and a social worker to interview Wes at
his school. After expressing that he was fearful of talking
because he had talked with someone before and his dad had gone to
jail for that, Wes confided to Jones that [Wilson] had become
angry because [Sarah] couldnt find [Marcos] coat for school that
morning, and . . . [Wilson] had punched [Sarah] and [Sarah] had a
black eye. Wes also described his fathers abuse against him and
his siblings. Jones described Wes as being afraid for his mom
and afraid of his dad. Jones then interviewed Marco and Dustin
at their elementary school.
Following her interviews with the three boys, Jones
immediately went to the house . . . . [Wilson and Sarah] were
not at home. [Jones] left a card on the door . . . . [asking] for
a return call. Upon finding Joness business card, Wilson
immediately called [Joness] office . . . and spoke with [her]
supervisor, Terry Bryers, and stated that if a social worker
stepped foot on the property, that they wouldnt leave the
property alive and not to send someone back. There were also
allegations that Wilson threatened that if a social worker goes
on his property, that he was going to take them down, duct-tape
them, [and] take them out to the woods where they would never be
found. Wilson then contacted the Talkeetna trooper post and
relayed a similar threatening message regarding actions he would
take if a social worker came onto his property and warned that
the children would only be removed over his cold, dead body. As
a result of these threats the state troopers removed the four
children on October 28 without OCS present.
The state troopers brought the four children to Jones
and OCS social worker Jalean Mallett. Mallett recalls that at
the time the children were dirty[,] . . . their clothes had holes
in them, and . . . they smelled pretty bad. Skyla smelled really
bad of urine. Skylas hair was stuck to the back of her hair
[sic] and kind of knotted. Marco had like a caked something on
the back of his head . . . [a] kind of brownish, yellowish
substance, and it covered pretty much most the back of his head.
All four children required dental work. Skyla ultimately had to
undergo dental surgery because fourteen of her nineteen teeth
suffered from bottle rot.
Jones and Mallett rode with all four children on their
way to the childrens respective foster homes. Wes and Marco
began to fight during the ride after Wes acknowledged the
domestic violence in the household. Marco ultimately admitted
the abuse, but told Jones that [Wilson] only hits [Sarah] when
she deserves to be hit. Wes repeatedly asked if his mother was
hurt and worried that [Wilson] was going to hit mom or something
worse. At one point Jones and Mallett asked about their fathers
whereabouts. After Skyla responded that he was at a friends
house, Marco told her to shut up and that she was not supposed to
reveal that information. Skyla retorted: hell beat us up and
hell kill us.
3. OCSs reunification efforts
OCS filed its Emergency Petition for Adjudication
of Children in Need of Aid and for Temporary Custody on October
31, 2006. The superior court held a hearing on November 9 and
granted OCS temporary custody of the children. The court ordered
that Wilson and Sarah shall work with the department in the
development of a case plan and shall participate in family
support services as set forth in that case plan.
Jones first approached the parents at the November
9 hearing, prior to even formulating a case plan. Wilson
indicated that there was no way that he would be willing to go to
family violence intervention. During that same interaction Jones
attempted to have Sarah sign a release of information. Wilson
refused to allow Jones to speak to Sarah and put himself as a
physical barrier between his wife and the social worker. Jones
described Wilson as very angry and recounted that Wilson yelled
at her both inside and outside the courtroom. Sarah told Jones
not to talk to Wilson. Jones testified that she was unable to
talk with them without that level of escalation and that [i]t was
not a working relationship.
Jones developed the case plan for the parents. She
found this difficult because she interpreted Wilsons prior
interactions with her to mean that she was not allowed to contact
Sarah or to contact him, except through his court-appointed
attorney. Jones thus formulated the case plan without input from
either Wilson or Sarah and did not attempt to contact them to try
to negotiate any aspects of the case plan with them.
Sarahs portion of the case plan required her to
engage in: (1) a Family Violence Intervention Program, for which
OCS referred her to Alaska Family Services; (2) a parenting
class, for which OCS again referred her to Alaska Family
Services; (3) a psychological evaluation and any treatment
recommended from such evaluation, for which OCS referred her to
clinical psychologist Dr. Melinda Glass; (4) any regular mental
health treatment indicated by her psychological evaluation; and
(5) a substance abuse assessment and participation in any
recommended treatment.
Wilsons portion of the case plan required him to
engage in: (1) a substance abuse assessment; (2) a Family
Violence Intervention Program, for which OCS referred Alaska
Family Services; (3) a parenting class, for which OCS referred
Alaska Family Services; (4) a psychological evaluation, for which
OCS referred Dr. Glass; and (5) any mental health treatment
prescribed following his psychological evaluation. All of these
activities required Wilson and Sarah to sign releases of
information.
The programs and services identified in the case
plan required Wilson and Sarah to travel a significant distance
from their home in Trapper Creek and many required Wilson and
Sarah to pay, as OCS will not pay for all these services. It
does not appear that any of these services were available to
Wilson or Sarah in Trapper Creek or nearby Talkeetna.2
In addition to the formulation of the case plan, Jones
arranged for supervised visitation for the parents to see their
children. When Sarah told Jones that they could not afford the
gasoline necessary to drive to the visitation, Jones arranged for
a fifty dollar gas voucher. Soon after, Wilson cancelled the
visitation and the gas card was never mailed.
On December 5 the parents came to see Jones to bring
her their case plan signature pages. Wilson and Sarah both
signed their respective case plans, but both checked the box
indicating that they disagreed with their respective plans.
The case was then passed on to Mallett, who had earlier
accompanied Jones to the initial removal, as the full-time social
worker on the case. Mallett testified that despite the referrals
she offered for the services prescribed in the case plan, both
Wilson and Sarah refused to attend classes. In regard to the
parenting classes, Sarah responded that she was unable to afford
the gas to commute to class. Mallett offered Sarah the fifty
dollar gas voucher previously authorized for Wilson and Sarah to
be picked up at any time from OCSs office; Sarah never claimed
the card. Wilson and Sarah indicated that they would engage in
the substance abuse assessments only if they were ordered to do
so by the court. Finally, Wilson and Sarahs respective attorneys
requested that OCS wait to complete the psychological evaluations
until Wilson and Sarah were ready.
Mallett set up a weekly phone appointment with Wilson
and Sarah to communicate with them about their case plan and
answer all their questions. The first week scheduled for their
conversation Mallett forgot about the appointment. Wilson left
angry and threatening messages for Mallett. Wilson and Sarah
began to have the weekly phone calls with Mallett, but those
calls soon devolved into brief conversations where Sarah would
plead with Wilson to let her speak to Mallett and Wilson would
force Sarah off the phone.
The parents were more willing to work with OCS to
arrange visitation, but visitation coordination also became
difficult and created many tense situations. Visitation was
especially difficult to arrange because the agency with which OCS
contracts to supervise visitation refused to supervise Wilson and
Sarah with their children. The agency, Alaska Family Services,
had learned of Wilsons prior violent threats. Although OCS
typically does not supervise visits, Mallett arranged to have the
guardian ad litem supervise a visit at her office on the
condition that Sarah come without Wilson. The parents did not
comply with this request and OCS employees spotted Wilson in the
parking lot outside the office. Following that visit Wilson
again began limiting Sarahs conversations with OCS and no further
visitation was arranged.
The case was then reassigned to OCS social worker Bonni
Glenn Harter approximately three weeks before the adjudication
hearing. Wilson conceded that after Harter was assigned to the
case she made active efforts.
B. Proceedings
OCS filed an Emergency Petition for Adjudication of
Children in Need of Aid and for Temporary Custody on October 31,
2006. Superior Court Judge Kari C. Kristiansen granted OCS
temporary custody of the children on November 9, 2006.
The adjudication hearing took place on twelve days
between March 16, 2007 and May 22, 2007. Judge Kristiansen heard
testimony from nineteen witnesses including Wilson, Sarah, three
OCS caseworkers, Dr. Glass, state troopers, and neighbors.
The court ruled from the bench, first finding that the
children were Indian children within the meaning of the Indian
Child Welfare Act3 and therefore ICWA applied. The court then
found:
The children are children in need of aid, and
[the court is] comfortable saying with clear
and convincing evidence as to Alaska Statute
47.10.011(8)4 based upon the overwhelming
evidence that [Wilson] has repeatedly abused
[Sarah] in the home, and the conduct by or
conditions created by [Sarah] and [Wilson]
have resulted in mental injury and placed the
children at risk of mental injury as a result
of the domestic violence in the home.
Judge Kristiansen went on to make specific findings related to
the injuries that Sarah suffered as a result of Wilsons violence.
Following these extensive findings, the court found that Sarah
has failed to understand that the violence impacts her children
in any way, and . . . she significantly has not been able to
recognize that she is a major part of this problem, as well, and
shes testified that the children on occasion have witnessed the
physical altercations.
Based on these factual findings and the testimony of
Dr. Glass, who testified to the effect that children suffer when
exposed to such domestic violence, the court concluded that
removal from the home is necessary based upon clear and
convincing evidence . . . that there will be serious emotional,
physical damage based on this domestic violence in the home.
The court also made factual findings under the neglect
section of the statute, AS 47.10.011(9).5 Because [a]t the time
of the removal, all children wore very soiled clothing; [Skyla]
at that time smelled of urine; [a]ll children had dental
concerns, and [Skyla] needed dental surgery to address 14 out of
19 of her teeth that had bottle rot; and the childrens hair were
extremely matted, the court found by a preponderance of the
evidence that the children were in need of aid under the neglect
section of AS 47.10.011(9).
After determining the children were children in
need of aid, Judge Kristiansen made detailed and explicit
findings related to OCSs obligation to make active efforts to
provide services designed to prevent the breakup of an Indian
family:6
The court finds the department made timely
reasonable efforts since the probable cause
hearing to provide family support services to
enable the safe return of the children, and
further the court finds that active efforts
were made to provide remedial services and
rehabilitative programs to prevent the
breakup of the family which were not
successful. Both parents refused services
that were offered to them despite direction
from the court, and it is notable that since
the beginning of this trial, the parents have
significantly still been refusing the
services, even with the aid of their counsel,
and that the OCS workers have been trying to
work with both [Wilson and Sarah] as well as
their attorneys to try to come up with a
suitable case plan and, simply put, the
parents have just refused.
[Wilson] and later [Sarah] unjustifiably
refused to communicate with the department or
assist in the development of their case plan.
[Wilson] left a message for the department
social worker that, quote, if a social worker
stepped on my property, they would not leave
alive, end quote. Both [Sarah] and [Wilson]
testified that they refused to cooperate with
the department.
Active efforts includes the following:
Department conducted psych evals for two
children, therapy and counseling services for
the children, transportation vouchers and cab
offer to the parents for visitation and other
issues, supervised visitation in a variety of
venues, telephonic visitation managed through
the department, sibling visitation every
other week, referrals for domestic violence
intervention program, domestic violence
support group offered, referrals for
parenting classes, completing physical exams
of children, dental work for [Skyla],
relative searches, parents with mental health
followup treatment, offer for psychological
evaluations, referrals for substance abuse
assessments, clothing for the children,
shelter offered for [Sarah], weekly telephone
calls, contacts with the parents to address
their ongoing concerns, which have still been
unresolved based on the fallout of
miscommunication.
Finally, the court made the requisite ICWA
findings, concluding that OCS has complied with the placement
preferences and concerns of ICWA.
Wilson appeals the courts conclusion that OCS
satisfied ICWAs active efforts requirement.
III. STANDARD OF REVIEW
The question of whether OCS complied with the active
efforts requirement of ICWA is a mixed question of law and fact.7
We review the superior courts factual findings for clear error.8
Such findings are clearly erroneous if we are left with a
definite and firm conviction based on the entire record that the
trial court has made a mistake.9 We review questions of law de
novo.10
IV. DISCUSSION
Wes, Marco, Dustin, and Skyla, as Alaska Natives, come
under the protections of ICWA.11 ICWA requires OCS to make active
efforts . . . to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family.12
Once OCS takes custody of Indian children it may retain custody
only if it proves at the adjudication that these active efforts
were unsuccessful.13 Wilson challenges the superior courts
finding that OCS met this ICWA requirement and made active
efforts to provide him with the resources for his rehabilitation
in order to prevent the breakup of his family.14
We generally find that OCS has made active efforts in
cases in which the state caseworker take[s] the client through
the steps of the plan for reunification of the family.15 We will
decline to find active efforts where OCS develops a case plan,
but the client must develop his or her own resources towards
bringing it to fruition.16 The issue of whether OCS made active
efforts is determined on a case-by-case basis.17
A. The State Was Excused from Making Active Efforts After
Wilson Refused To Cooperate with OCS and Threatened OCS
Social Workers.
Wilsons appeal hinges on the argument that the state
declined to make active efforts because his assigned caseworkers
at OCS considered him threatening from their initial contacts
with him and never reached out to him beyond those preliminary
interactions. Their hostility towards him, as Wilson describes
their behavior, inspired them only to make passive or token
efforts for services that addressed his problems, specifically
his abusive tendencies.
If 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.18 In K.N. v. State, we considered the willingness of the
parent to complete the steps necessary for reunification in
evaluating whether OCS met the active efforts requirement.19
After one of the fathers sons died while under his care, the
state moved to terminate the fathers rights to his other
children.20 The father initially refused to sign his treatment
plan or submit to a psychological evaluation.21 He ultimately
submitted to the psychological evaluation under the threat of
court sanctions and was diagnosed with paranoid schizophrenia.22
The father contended that the state only had him undergo this
evaluation in order to have his rights terminated.23 In advising
that even though the state could have done more to attempt to
unify the family, we upheld the superior courts active efforts
finding because it [was] unlikely that further efforts by [the
state] would have been effective in light of [the fathers]
attitude.24
We have similarly excused OCS from pursuing further
active efforts in other cases where the parents have evinced no
interest in cooperating with OCS. In A.A. v. State, we upheld an
active efforts finding where the state failed to even make a case
plan.25 While explicitly noting that we did not condone the
failure to create a case plan, we held that although the [states]
efforts in relation to A.A. may have been relatively passive,
A.A. demonstrated a lack of willingness to participate in
treatment and therefore the state satisfied ICWAs active efforts
requirement.26
Wilson was more than simply uncooperative and difficult
he had a history of violent behavior and threatened OCS social
workers. After finding that Jones had come to his property to
investigate the claims that ultimately led to the childrens
removal, Wilson called Joness supervisor and threatened that if
Jones returned to his home she would not leave the property
alive. He also threatened to duct-tape any social workers that
entered his property and leave them in the woods. He repeated
these threats to Talkeenta troopers. Wilson continued to display
this behavior following the removal of his children. When
Mallett missed her first weekly telephone conference with Wilson
and Sarah, Wilson left a message to the effect of [Mallett]
better watch [herself] because [she doesnt] know who he is and
what he can do. Jones, who estimated that at the time she had
completed about 150 investigations, testified that [w]eve not had
direct threats of this voracity ever in any removal Ive done.
Moreover, Wilson was simply unwilling to cooperate with
OCS. His past interactions with OCS show that he consistently
refused OCSs services. OCS records and testimony reveal that he
ignored OCS recommendations and refused OCS services in 1998,
2002, and 2003. In fact, in 2005, Wilson and Sarah refused to
even allow OCS onto their property.
This pattern continued when OCS presented Wilson with
the case plan at issue here. He stated flatly that he would not
comply with three requirements (of the five included in the case
plan) unless they were court-ordered: the psychological
evaluation, the substance abuse assessment, and the domestic
violence classes. Wilson contends that OCS should have sought
the court order to have him undergo a psychological evaluation.
Even putting aside our precedent which excuses further active
efforts once the parent expresses an unwillingness to
participate, requiring OCS to seek court orders for every
uncooperative parent would put a huge and pointless burden on the
department and the court system.
Moreover, Wilson was unwilling to even talk to the
social workers. At the first hearing following removal of the
children, he told Jones that she was not allowed to speak to him
and yelled at her. Sarah explicitly instructed Jones not to talk
to her husband. Wilson similarly refused to talk to Mallett when
she was assigned to the case. Soon after Mallett established
weekly telephone calls with Wilson and Sarah, Wilson refused to
allow Sarah to speak to Mallett and forcibly ended conversations.
Finally, Wilson ignored OCSs instructions. For
example, Mallett arranged supervised visitation at OCSs offices
after Alaska Family Services, which usually conducted supervised
visitation on a contract basis, refused to supervise visitation
because of Wilsons earlier threats and actions. Mallett
explicitly conditioned the visits on Wilson remaining away from
the premises during the visits. But Wilson ignored the condition
and was seen in the parking lot during Sarahs visitation, forcing
cancellation of the visits.
Wilson threatened OCS social workers, consistently
declined OCS services since 1998, explicitly refused to cooperate
with his current case plan, cut off communication with OCS social
workers, and disobeyed OCSs orders. He created the situation
where it was difficult and dangerous for OCS to work with him to
reunify him with his children.
B. Despite Wilsons Refusal To Cooperate, OCS Continued To
Make Active Efforts.
Despite Wilsons threats and refusal to cooperate with
OCS, OCS still made active efforts to reunify the family and
facilitate Wilsons treatment of his issues. Below, we examine a
few of these examples of active efforts: providing gas vouchers,
facilitating enrollment for prescribed classes, arranging
supervised visitation at the OCS offices, and facilitating weekly
telephone calls. These efforts, which continued even past
Wilsons refusal to comply with requirements or cooperate with
OCS, are more than sufficient to meet ICWAs active efforts
requirement.
Because OCS was unable to offer services in Trapper
Creek or Talkeetna, Jones offered Wilson and Sarah a fifty dollar
gas voucher. Jones first offered the gas voucher for visitation
purposes, but withheld mailing it after Wilson cancelled Sarahs
visit. When Sarah later told OCS that she was unable to attend
the parenting classes due to her inability to afford gas, Mallett
again offered the gas card to Sarah for her and Wilsons use to
attend their prescribed classes. Sarah and Wilson never came to
claim the gas card while Mallett was on the case. Harter
ultimately provided the gas voucher to Wilson and Sarah
approximately two weeks before the adjudication hearing.
Furthermore, OCS took active steps to ensure that
Wilson and Sarah could enroll in and attend the parenting and
domestic violence classes. Because there was a question of
whether Wilson and Sarah would be able to afford such classes,
Mallett testified that she discussed funding options with Wilson
and Sarah for the domestic violence programs. She indicated it
may be possible to secure funding through Sarahs tribe, through
OCS, or through a work-it-off program run by Alaska Family
Services. In addition to discussing funding options with Wilson
and Sarah, Mallett contacted the parenting class referral on
their behalf to learn the dates of the programs and other
details. Mallett further testified that she did not contact the
coordinator of the domestic violence classes because Wilson and
Sarah indicated that they would attend those classes only if they
were court-ordered. Mallett thus took active steps in
approaching the funding issue, recognizing the financial
instability of the parents, and took steps to enroll them in the
one class that they expressed some degree of willingness to
complete.
In addition, OCS arranged visitation between Sarah and
her children even though such visitation was made difficult by
Wilsons violent threats. As noted above, the OCS office in this
case typically contracts out supervised visitation to Alaska
Family Services. When Alaska Family Services refused to
supervise visitation because of Wilsons prior actions, Mallett
arranged supervised visitation for Sarah at the OCS office even
though OCS typically does not supervise visits. Here, OCS went
beyond its normal procedure to allow for visitation even though
it was Wilsons behavior that precluded OCS from following its
normal protocol of contracting out this supervised visitation to
Alaska Family Services.
Mallett also made herself available at the same time
each week to answer all of Wilson and Sarahs questions regarding
their case. Mallett admittedly missed the first meeting, but
made herself available each week after that to answer questions.
Mallett testified that, after the initial mishap, she and the
parents were able to talk during these weekly phone calls. After
some time, Mallett found that each week she would call and the
phone call would last less than a minute before Wilson would end
the call. When this pattern continued, Mallett then began to
coordinate through the attorneys. Malletts efforts to arrange a
set time, call the parents, continue to attempt to have these
weekly telephonic conferences despite the parties lack of
cooperation, and then pursue other routes of communication
demonstrate active efforts by this OCS social worker.
Determining whether the state has made active efforts
requires a very fact specific inquiry. The facts in this case
overwhelmingly show that OCS workers, despite being threatened
by a man with a violent past, made sincere but unsuccessful
efforts to help Wilson address domestic violence problems.
V. CONCLUSION
Because the superior court did not err in concluding
that OCS complied with ICWAs active efforts requirement despite
Wilsons unwillingness to participate in his case plan, we AFFIRM
the superior courts finding that Wes, Marco, Dustin, and Skyla
are children in need of aid.
_______________________________
1 In order to protect the privacy of the parties, we use
pseudonyms.
2 It is not disputed that Wasilla where visitation was
to occur and where services were available is a long drive from
Trapper Creek. Jones testified it was a 75 mile drive. Wilson
contended that the round trip is 200 miles.
3 25 U.S.C. 1901-1923, 1951 (2006).
4 AS 47.10.011(8) provides that the court may find a
child to be in need of aid if the child has been subjected to
conduct of a parent or guardian that results in mental injury to
the child.
5 AS 47.10.011(9) provides that the court may find a
child to be in need of aid if the child has been subjected to
neglect.
6 See 25 U.S.C. 1912(d) (2006).
7 Maisy W. v. State, Dept of Health & Soc. Servs., 175
P.3d 1263, 1267 (Alaska 2008).
8 Id.
9 J.S. v. State, 50 P.3d 388, 391 (Alaska 2002).
10 See id.
11 Id.
12 25 U.S.C. 1912(d).
13 Id.
14 Even though not an Alaska Native, Wilson is still
covered under the protections of ICWA because his children are
Alaska Natives. K.N. v. State, 856 P.2d 468, 474 n.8 (Alaska
1993) (The ICWA requirements apply even when . . . [the state] is
seeking to terminate the parental rights of a non-Indian
parent.).
15 C.J. v. State, Dept of Health & Soc. Servs., 18 P.3d
1214, 1219 (Alaska 2001) (quoting Craig J. Dorsay, The Indian
Child Welfare Act and Laws Affecting Indian Juveniles Manual 157-
58 (1984)); see also A.A. v. State, Dept of Family & Youth
Servs., 982 P.2d 256, 261 (Alaska 1999).
16 A.A., 982 P.2d at 261.
17 N.A. v. State, 19 P.3d 597, 603 (Alaska 2001).
18 See K.N., 856 P.2d at 477.
19 Id.
20 Id. at 471.
21 Id. at 472.
22 Id.
23 Id.
24 Id. at 477.
25 982 P.2d 256, 262 (Alaska 1999).
26 Id.
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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