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.

 

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 (6/13/2008) sp-6274

Wilson W. v. State, Office of Children's Services (6/13/2008) sp-6274, 185 P3d 94

     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.

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