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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jon S. v. State, Dept. of Health & Social Services, Office of Children's Services (07/31/2009) sp-6395
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
| JON S., | ) |
| ) Supreme Court No. S- 13257 | |
| Appellant, | ) |
| ) Superior Court No. 3KN-05-43 CP | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, DEPART- | ) |
| MENT OF HEALTH AND SOCIAL | ) No. 6395 - July 31, 2009 |
| SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Anna Moran, Judge.
Appearances: Jill Wittenbrader, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. David T.
Jones, Assistant Attorney General, Anchorage,
and Richard A. Svobodny, Acting Attorney
General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
EASTAUGH, Justice.
CHRISTEN, Justice, dissenting in part.
I. INTRODUCTION
A father challenges a superior court order finding his
daughter, an Indian child under the Indian Child Welfare Act
(ICWA), to be a child in need of aid and terminating his parental
rights. We conclude that the record contains sufficient evidence
to support the superior courts findings that: (1) the daughter
was a child in need of aid; (2) the father failed to remedy the
conduct or conditions placing her at harm; (3) the state met its
active efforts burden; (4) returning the daughter to the father
would beyond a reasonable doubt be likely to cause her serious
emotional harm; and (5) termination of parental rights was in the
best interests of the child. We therefore affirm.
II. FACTS AND PROCEEDINGS
Melissa1 was born in October 2004. She qualifies as an
Indian child through her mother, Mae, and is affiliated with the
Native Village of Barrow.2 At the time of Melissas birth her
father, Jon, was living in Seward and was on discretionary parole
for felony assault.
Shortly before April 2005, Mae took Melissa to Seward
to live with Jon so Mae could enter treatment. In April 2005
Jons parole was revoked and he was reincarcerated. Considering
Melissas second temporary placement to be unsafe, the State of
Alaska, Office of Childrens Services (OCS) filed an emergency
child in need of aid (CINA) petition on June 29, 2005. Jons OCS
caseworker, Tonja Whitney, unsuccessfully attempted to place
Melissa through her tribe, then placed her in a foster home in
Kenai for one month.
OCS placed Melissa with Jon after his release in July
2005. Between August 2005 and April 2006 OCS developed and
updated Jons case plan and helped Jon and Melissa obtain
essential services. OCS also requested information about Jons
family for a possible placement. Robyn Noel, Jons new OCS
caseworker, later testified that Jon was doing wonderfully on his
case plan, that Melissa appeared well attended to and happy, and
that OCS planned for Melissa to stay with Jon until she could be
reunified with either parent. Noel also stated in a report that
Jon and Melissa had formed healthy bonds of trust and affection.
In April 2006 Jon tested positive for cocaine. His
parole was revoked and he was again incarcerated.
OCS took Melissa back into state custody. Noel
unsuccessfully attempted to contact Mae and to place Melissa
through her tribe. OCS placed Melissa in two temporary Anchorage
foster homes while pursuing placements in Seward and Kenai, and
with Jons parents in Washington, and discussed transferring the
case to Anchorage to facilitate visits with Jon.3
Although both Jon and Noel testified that they made
several attempts to contact the other, Jon spoke to OCS only once
between April and August 2006.
In August 2006 OCS located a foster home in Kenai but
was still considering relatives in Barrow or Washington. The
case plan goal remained for Jon to care for Melissa until Mae
finished treatment.
By mid-August 2006 OCS had placed Melissa in her
current foster home in Kenai. When Melissa arrived she was
exhibiting severe behavioral problems indicative of an attachment
disorder.
On August 29, 2006, Jon was released to a halfway house
in Anchorage and placed on mandatory reparole. He did not inform
OCS of his release. Jon testified that in September or October
2006 he called from the halfway house and asked Noel to bring
Melissa to visit him. Between Jons August release and April
2007, OCS unsuccessfully attempted to contact Jon but did not
hear from him. During that time Noel traveled to Atqasuk and
Barrow to meet with Mae, worked to find a long-term placement
through Melissas tribe or with Jons family, and updated Jons case
plan.
Mae asked in February 2007 to relinquish her parental
rights. In April 2007 OCS requested a permanency hearing,
stating its intention to file a petition to terminate Jons
parental rights. Shortly thereafter Jon was arrested for
violating parole and OCS located him in jail.
In May 2007 Mae voluntarily relinquished her parental
rights. OCS filed a petition to terminate Jons parental rights
in August 2007. It created a new case plan in September 2007,
listing the goal as adoption, with Jons family a possibility.
Noel unsuccessfully pursued placement with Jons family.
Also, OCS arranged for Melissa to visit Jon in jail in
September 2007. The visit appeared to go well, but Noel
testified that shortly thereafter Melissa regressed to attachment
disorder behaviors.
In October 2007 Dr. Paul Turner, a clinical
psychologist, examined Melissa at OCSs request. Dr. Turner
concluded that Melissa had a disorganized attachment disorder,
resulting from persistent disregard for her basic emotional and
physical needs and impairment in the formation of stable
attachment figures. He found that her attachment disorder had
improved while she was with her foster family, that she had a
healthy, solid attachment to them, and that a change in her
placement would have significant negative ramifications for her
development. He recommended no further visits with Jon.
In March 2008 Jons attorney arranged one two-hour visit
between Melissa, Jon, and a counselor, Valerie Demming,
apparently in preparation for Demming to testify as Jons witness
at Jons termination hearing.
The termination hearing began on April 1, 2008, and
lasted six days. The court heard testimony from Jon; two OCS
caseworkers, Whitney and Noel; two parole officers; the chemical
dependency counselor who conducted Jons substance abuse
assessment; Dr. Turner, testifying as an expert in clinical
psychology; and Demming, who did not testify as an expert because
of her limited knowledge of the case.
In August 2008 the court issued an order with findings
of fact and conclusions of law. First, the court found that
Melissa was a child in need of aid on four grounds: (a)
abandonment, (b) failure to make adequate arrangements while
incarcerated, (c) mental injury, and (d) habitual use of
intoxicants. Second, the court found by clear and convincing
evidence that Jon had not remedied this conduct or these
conditions and that doing so would take him at least a year,
which would be too long for Melissa. Third, the court found that
the state had met its active efforts burden under ICWA. Fourth,
the court found that giving Jon custody would, beyond a
reasonable doubt, be likely to result in serious emotional damage
to Melissa. Finally, the court found that it was in Melissas
best interests to terminate Jons parental rights.
Jon appeals each of these rulings except for the courts
finding concerning Melissas best interests.
III. DISCUSSION
Before terminating parental rights under ICWA and the
CINA statutes and rules,4 a superior court must find by clear and
convincing evidence that: (1) the child has been subjected to
conduct or conditions described in AS 47.10.011;5 (2) the
parent has not remedied the conduct or conditions in the home
that place the child at substantial risk of harm or has failed,
within a reasonable time, to remedy the conduct or conditions in
the home that place the child in substantial risk so that
returning the child to the parent would place the child at
substantial risk of physical or mental injury;6 and (3) in the
case of an Indian child,7 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.8 Also, under ICWA, the court must find
by evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, that the continued custody of the
child by the parent . . . is likely to result in serious
emotional or physical damage to the child.9 Finally, the court
must find by a preponderance of the evidence that termination of
parental rights is in the best interests of the child.10
A. Standard of Review
Whether the superior courts factual findings satisfy
ICWA and the CINA statutes and rules raises questions of law to
which we apply our independent judgment.11 Whether substantial
evidence supports the courts findings that the state complied
with ICWAs active efforts requirement and proved beyond a
reasonable doubt that granting the parent custody would likely
result in serious damage to the child are mixed questions of law
and fact.12 We review factual findings for clear error, reversing
only if, after a review of the entire record in the light most
favorable to the party prevailing below, we are left with a
definite and firm conviction that a mistake has been made.13 We
bear in mind at all times that terminating parental rights is a
drastic measure.14
B. Whether It Was Error for the Superior Court To Find
that Melissa Was a Child in Need of Aid
The superior court found by clear and convincing
evidence that Melissa was a child in need of aid under AS
47.10.011(1) (abandonment), .011(2) (failure to make adequate
arrangements while incarcerated), .011(8) (mental injury), and
.011(10) (habitual substance use). Jon appeals each of these
findings.
Under AS 47.10.011(1), a child is in need of aid if the
court finds a parent or guardian has abandoned the child as
described in AS 47.10.013, and the other parent is absent or has
committed conduct or created conditions that cause the child to
be a child in need of aid. Mae voluntarily relinquished her
parental rights. The other parent prerequisite has therefore
been met.15
The court found by clear and convincing evidence that
Jon abandoned Melissa by failing to provide reasonable support or
maintain any meaningful contact with [Melissa] for over one year.
Jon argues that this finding was clearly erroneous because his
behavior did not exhibit conscious disregard for his parental
obligations, and because his conduct did not destroy the
parentchild relationship.
We hold that the superior courts finding of abandonment
was not clearly erroneous. Jon failed to provide support by not
paying child support after being released from jail in August
2006, even though he was working. Jon failed to maintain
meaningful contact and made only one contact with OCS between
April 2006 and May 2007.16 And despite the bonds and affection
between Melissa and Jon, Jons conduct in violating parole and in
falling out of contact led to his absences and Melissas foster
care placements,17 which in turn led to Melissas disorganized
attachment disorder, to which she regressed after visiting with
Jon. Substantial evidence supports the superior courts
conclusions that Jon demonstrated a conscious disregard for his
parental obligations that led to the destruction of the
parentchild relationship.18
The superior courts finding by clear and convincing
evidence that Melissa was a child in need of aid under AS
47.10.011(1) (abandonment) was not clearly erroneous. Because
only one statutory basis is required for a CINA finding, we do
not need to address the superior courts other CINA findings.19
C. Whether It Was Error To Find that Jon Failed To Remedy
the Harmful Conduct or Conditions
Before a court may terminate parental rights, it must
find by clear and convincing evidence that the parent has failed
to remedy the harmful conduct or conditions.20
Jon argues the court erred in finding a failure to
remedy because, by the time the court issued its order, he had
been out of jail for four months, he was off parole, and there
was no evidence of any substance use for two years. The state
responds that Jons pattern of making choices leading to
incarceration demonstrates failure to remedy, and that it would
not be in Melissas best interest to return her to Jon, given
Melissas age and needs and Noels testimony that it would take Jon
eighteen months to remedy his conduct.
Substantial evidence supports the finding of failure to
remedy. Noel testified that before visitation could occur, Jon
would have to undergo a substance abuse assessment and treatment,
something he had not done at the time of trial, and demonstrate
nine months of documented post-treatment sobriety. Noel also
testified that it would probably take Jon approximately a year
and a half or better to complete the tasks necessary for
reunification, and that because of Melissas age and the fact she
had already been in custody for twenty-eight months, a year and a
half more was just too long to ask of a toddler.
7
Dr. Turner testified that reunification could occur
only after Jon demonstrated that he could provide stability, take
care of his basic needs, and be free of substances, and after Jon
and Melissa had visitation that increased gradually. Dr. Turner
testified that placing Melissa with Jon even nine months from the
time of trial represents a very serious risk to her given her
history with attachment disorder. Dr. Turner also testified that
a bond exists between [Melissa] and her present foster family,
which is very critical at this stage of her life. Even Demming,
who was supportive of Jon having a continued relationship with
Melissa, testified that she would recommend frequent supervised
contact for an extensive period of time and parenting classes
before reunification.
The court did not clearly err in concluding that Jon
had not remedied the conduct or conditions placing Melissa at
risk.21 It also did not clearly err in concluding that
reunification would not be in Melissas best interests.22
D. Whether It Was Error To Find that OCS Made Active
Efforts To Prevent the Breakup of the Family
ICWA requires that before a court may terminate
parental rights, it must find by clear and convincing evidence
that active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of
the Indian family and that these efforts have proved
unsuccessful.23 Although no pat formula exists for distinguishing
between active and passive efforts, distinctions do exist.24 For
example, active efforts require taking a parent through the steps
of a plan and helping the parent develop the resources to
succeed; drawing up a case plan and leaving the client to satisfy
it are merely passive efforts.25
The parents willingness to cooperate is relevant to
determining whether the state has met its active efforts burden,
and a parents incarceration is a significant factor that
significantly affects the scope of the active efforts that the
[s]tate must make to satisfy the statutory requirement.26 In
evaluating whether the state has met its active efforts burden,
we look to the states involvement in its entirety.27
Jon argues that OCS made no effort to offer services to
Jon after Jons April 2006 arrest, and failed to provide a
substance abuse evaluation and treatment, and thus failed to meet
its active efforts burden or even the reasonable efforts
requirement in AS 47.10.086(a).28 Jon also argues that OCS failed
to meet its active efforts burden because it de facto terminated
his AS 47.10.084(c) right of reasonable visitation by failing to
provide reasonable visitation between April and August 2006.
Finally, Jon argues that OCS failed to meet its active efforts
burden because it did not comply with ICWAs placement
preferences.29 The state responds that it made active efforts
both before and after Jons April 2006 arrest. The court found by
clear and convincing evidence that the state had met its active
efforts burden.
The record contains substantial evidence supporting the
superior courts finding that over the entirety of the case, from
October 2004 until the termination trial in April 2008, the state
made active efforts to prevent the breakup of the Indian family.
We list these efforts because they reflect OCSs potentially
useful and substantive efforts made in attempting to reunify the
family. In 2005, when Jon and Melissa lived in Seward and Moose
Pass, OCS made the following efforts: paid for and coordinated
Jons paternity test; advocated for financial and housing
assistance for Jon and Melissa; spent approximately $700 in
vouchers for diapers, clothes, medicine, and other supplies for
Melissa; paid and arranged for Jon and Melissa to visit Mae in
Anchorage; conducted monthly home visits; provided referral
services to SeaView Infant Learning Program and facilitated an
evaluation for Melissa and parenting education for Jon; and
established a case plan for Jon that included a referral to
SeaView Community Services for a substance abuse assessment.30
OCSs efforts in 2006 and 2007 included: establishing
and updating case plans; coordinating with the guardian ad litem
to help Jon and Melissa relocate to Anchorage to be closer to Mae
and to improve job opportunities for Jon; helping Jon and Melissa
get into a temporary shelter in Anchorage and finding day care
for Melissa; helping Jon get bus passes in Anchorage; instructing
Jon regarding visits between Melissa and Mae once Jon and Melissa
had moved to Anchorage; setting up a urinalysis appointment after
the April 2006 cocaine allegation; working with Mae, Melissas
tribe, and Jon to find a long-term placement for Melissa that
would comply with ICWA; trying to locate and contact Jon by
calling jail facilities, Jons parole officers and attorney, and
various shelters in Anchorage both before and after he
disappeared in October 2006; referring Melissa to doctors for
medical and psychological evaluations; traveling to Atqasuk and
Barrow to meet with Mae and gather information about Jons family;
contacting family members of Mae and Jon for possible placement,
preparing an Interstate Compact on the Placement of Children
(ICPC) packet for placement with Jons brother in Texas, and
coordinating with a social worker in Texas on that placement
possibility; and arranging for Melissa to visit Jon in jail in
September 2007. Jons parole officer also referred Jon to the
Cook Inlet Tribal Councils substance abuse assessment program in
October 2006; Jon did not obtain the assessment.
Despite these extensive active efforts, the record does
support Jons argument that OCSs efforts declined after his April
2006 incarceration. Both Noel and Jon testified at length as to
their communication problems; they communicated only once between
April and August 2006, and may have communicated one more time in
September 2006. Both Noel and Jon testified that they had
discussed giving Jon photographs of Melissa and an additional
visit with her, but that he received neither the photographs nor
the visit.
We analyze the states active efforts based on its
overall handling of the case,31 including efforts by Jons parole
officers. Because the record and testimony show that OCS and
Jons parole officers made active efforts throughout 2005 and
2006, actively continued trying to locate Jon between October
2006 and April 2007, provided visitation with Melissa once Jon
was located again, and actively pursued placement with Jons
family from October 2006 through November 2007, we hold that the
superior court did not clearly err in finding that the state made
active efforts.
Jon next argues that OCS failed to meet its active
efforts burden because it de facto terminated his AS 47.10.084(c)
right of reasonable visitation by failing to provide reasonable
visitation between April and August 2006. Alaska Statute
47.10.084(c) states in part that if legal custody has been
transferred but parental rights have not been terminated, the
parents shall have residual rights and responsibilities,
including reasonable visitation.32 The circumstances do not
establish the extreme facts necessary to conclude that Jons
parental rights were de facto terminated: Melissa was placed in a
foster home in Alaska; Jon was out of contact with OCS and his
parole officer even when out of jail; and through November 2006
OCS supported the concurrent goal of reunification with either
parent.33
Jon also argues that OCS failed to make active efforts
because it did not make sufficient attempts to place Melissa with
one of his family members and because Melissas placement is
therefore not ICWA-compliant. The superior court concluded that
Melissas current placement with her foster family is appropriate.
ICWA gives preference first to extended family members, then to
other members of the childs tribe, and finally to other Indian
families.34
OCS made numerous efforts to place Melissa with Jon and
Maes family members, but those placements proved inadequate.35
Both OCS caseworkers testified that on multiple occasions
Melissas tribe informed OCS it did not have any placement
possibilities for Melissa. Melissas current foster family is an
Indian family, belonging to the Kenaitze Indian Tribe. This
satisfies both ICWA and state law.36 The superior court therefore
did not err in concluding that the state made active efforts to
ensure that Melissas placement was ICWA-compliant.
The temporary decline in the states efforts after Jon
was reincarcerated in April 2006 is troubling. Although we
conclude that the superior court permissibly held that the state
met its statutory burden, we emphasize that to ensure an outcome
in the childs best interests while simultaneously promoting
reunification and reducing delays in achieving permanency, the
state must zealously fulfill its active efforts duty. But we
measure active efforts over the entirety of the case.37 Despite
the deficiencies ably cataloged in the dissenting opinion, we are
not convinced that the superior court clearly erred in finding
that the state made active efforts, or that it committed legal
error in concluding there was clear and convincing evidence of
active efforts.38
E. Whether the Superior Court Erred in Finding that
Returning Melissa to Jon Would Likely Result in Serious
Emotional Harm
ICWA and CINA Rule 18 require the trial court to find
beyond a reasonable doubt that the parents custody would likely
result in serious emotional or physical damage to the child.39
Although the court must focus on risk of future harm rather than
past injury, past failures may predict future conduct.40 Proof of
the likelihood of future harm must include qualified expert
testimony based upon the particular facts and issues of the case,
but the trial court may aggregate this with other evidence as a
basis for its finding.41
The court found beyond a reasonable doubt that
returning Melissa to Jon would likely cause her harm; it based
its conclusion on Dr. Turners testimony and Jons past behavior.
Jon argues that Dr. Turners expert testimony was not sufficient
to support the courts finding because the testimony was not
grounded in knowledge of the specific facts of the case.42 The
state responds that Dr. Turners testimony, combined with evidence
of Melissas regression after visiting Jon in September 2007,
supported the courts finding.
Dr. Turners testimony was sufficiently grounded in
important facts about Melissas behavior and needs, and about Jons
suitability to parent; his testimony was not fatally weakened by
over-reliance on documents or his failure to interview Jon.43
Although Dr. Turner did not read the entire OCS case file, he
read court records from 2005 to 2007, information from the
guardian ad litem and OCS, the 2005 emergency petition for
adjudication of child in need of aid, the 2006 pre-disposition
report, an affidavit from the OCS caseworker, and early childhood
inventories completed by Melissas foster parents. He also spoke
with Jons social worker and Melissas guardian ad litem and foster
mother, and met with Melissa on four occasions. His testimony
addressed many of the cases specifics and responded to
hypotheticals based on information relating to the case.
The record contains substantial evidence of Jons past
pattern of making choices that led to incarceration or that
caused him to disappear from Melissas life, demonstrating his
instability and inability to parent.44 The record also contains
substantial evidence of Melissas history of physical and
emotional problems and attachment disorder, how those problems
are connected to Jons absences from her life, and the risk that
disrupting Melissas current placement would cause her serious
emotional and physical harm. The superior court therefore did
not err in concluding that returning Melissa to Jon would likely
result in serious emotional harm.
IV. CONCLUSION
The superior courts order terminating parental rights
is therefore AFFIRMED.
CHRISTEN, Justice, dissenting in part.
I agree with the court in all but one respect. In my
view, OCS failed to make active efforts in this case.
Congress identified two policy goals in enacting ICWA:
to protect the best interests of Indian children and to promote
the stability and security of Indian tribes and families.1 Our
legislature and this court have recognized that permanency is in
childrens best interests.2 But our case law allows active
efforts to be measured over the entirety of a case, without
regard to how long it takes to achieve permanency.3 Our
legislature has expressly recognized that delays in these cases
can further victimize children and that multiple or prolonged
placements can cause emotional harm.4 Measuring OCSs active
efforts over the entirety of a case, without regard for the
impact of delays attributable to OCS, threatens to lower the
active efforts standard and permits unnecessary and harmful
delays in achieving permanency. In this case, the record shows
that OCSs actions significantly lengthened the time it took to
achieve permanency for Melissa, that these actions were
inadequately explained, and that the resulting delays harmed
Melissa and reduced her chances of reunifying with Jon or his
extended family. I therefore respectfully dissent from the
courts active efforts analysis.
I. VIEWING THE ENTIRETY OF THE STATES EFFORTS WITHOUT REGARD
FOR THE IMPACT OF DELAYS ATTRIBUTABLE TO OCS IMPERMISSIBLY
LOWERS THE ACTIVE EFFORTS STANDARD.
Congress did not require that reviewing courts consider
the entirety of the states involvement in a case to determine
whether active efforts have been made; our court adopted this
approach by looking to case law from other jurisdictions.5
Initially, our court applied this approach under relatively
narrow circumstances, where three identified conditions existed:
(1) efforts had been made to address a substance abuse problem,
(2) the parent had shown no willingness to change, and (3)
parental rights had been terminated as to another child.6 This
court began applying this approach when the burden of proof was
preponderance of the evidence,7 but it has continued to apply it
in recent cases, without discussion, even though the law now
provides that active efforts must be demonstrated by clear and
convincing evidence to terminate parental rights.8 And the
application of this rule has expanded. In two recent cases our
court looked to the entirety of the states efforts to conclude
the active efforts burden was met without considering whether the
three conditions existed, focusing instead on the lengths of the
time periods of active and passive efforts and on the degree to
which the parent showed willingness or ability to change.9
Although our case law has evolved to take a more
expansive view of the active efforts requirement, our legislature
was unequivocal in identifying how delays in resolving child-in-
need-of-aid cases can harm children. The legislative findings,
set forth in AS 47.05.065, provide, in relevant part:
The legislature finds that
. . . .
(5) numerous studies establish that
(A) children undergo a critical
attachment process before the time they
reach six years of age;
(B) a child who has not attached with an
adult caregiver during this critical
stage will suffer significant emotional
damage that frequently leads to chronic
psychological problems and antisocial
behavior when the child reaches
adolescence and adulthood; and
(C) it is important to provide for an
expedited placement procedure to ensure
that all children, especially those
under the age of six years, who have
been removed from their homes are placed
in permanent homes expeditiously.
I question the trajectory of our case law and believe
the sequential approval of orders terminating parental rights in
cases where significant delays attributable to OCS go unexplained
may inadvertently undercut ICWAs important legislative goals and
effectively lower the active efforts standard.
II. AVOIDABLE, INADEQUATELY EXPLAINED, AND HARMFUL DELAYS
ATTRIBUTABLE TO OCS ARE NOT CONSISTENT WITH ACTIVE EFFORTS.
OCS faces the difficult job of balancing efforts to
reunify families with efforts to protect childrens best
interests.10 There are no readily available cures for many of
the problems that prompt OCS to assume emergency custody of
children, such as long-term addictions. For this reason, some
delays in resolving child-in-need-of-aid cases are inevitable.
But unnecessary delays attributable to OCS that substantially
reduce the chances for successful reunification or lengthen the
time it takes to achieve permanency are not consistent with
active efforts.
The courts opinion lists steps taken by OCS in this
case, but in my judgment whether active efforts were made should
be a qualitative, not quantitative, question. Meeting the active
efforts burden should require that OCSs efforts increase the
likelihood that families will be reunified, or at least reduce
the amount of time it takes to determine whether reunification
will be possible. Where reunification is possible, a childs best
interests are served by helping to reunify the family without the
risk of harm from extended or multiple out-of-home placements.
Where reunification is not possible, the childs best interests
are served by initiating termination proceedings without
avoidable delay.
The facts of Melissas case lead me to conclude that OCS
did not meet its active efforts burden because of three critical
failures: (1) OCS failed to obtain paternity test results in the
early stages of the case; (2) OCS did not train its caseworker on
how to locate and communicate with Jon while he was in state
prison; and (3) OCS failed to train its caseworker on how to
interpret and apply ICWAs placement preferences, resulting in the
caseworker waiting to pursue placement with paternal relatives
until several months after the mother asked to relinquish her
parental rights. In my judgment, these delays were attributable
to OCS, avoidable, inadequately explained, and harmful to Melissa
and her chances for reunification.
A. The Failure To Obtain Paternity Test Results in a
Timely Manner in the Early Stages of the Case Was
Attributable to OCS, Inadequately Explained, and
Harmful.
One factor the court cites in support of its conclusion
that OCS made active efforts is that the caseworker arranged for
paternity testing.11 But the testing did not help Melissa
achieve permanency; testing results were needed. Jon needed the
test results to qualify for the financial assistance that could
have better positioned him to find housing and employment earlier
in the case. This assistance could have permitted OCS to
determine, at an earlier point, whether he was likely to be able
to successfully parent Melissa.
Jon submitted to a paternity test by fall 2005,12 but
OCS did not receive the results until sometime between December
2005 and March 2006. The results were not obtained earlier
because the OCS caseworker did not know how to obtain them. The
caseworker testified she called the Bureau of Vital Statistics
five or six times and left a message, and that it was not until
she called OCS Anchorage in December 2005 or January 2006 that
she learned that LabCorp does the testing. She then called
LabCorp and received the results within two weeks. Arranging for
paternity testing, without knowing how to get paternity test
results, is inconsistent with active efforts.
Although OCS asked that Jon and Melissa receive
priority consideration for financial assistance in light of the
delayed paternity results, this assistance was denied. By March
2006, Jon still had not been approved for financial assistance.
OCSs failure to obtain the test results promptly contributed to
delays in achieving permanency for Melissa and in reducing the
likelihood of successful reunification; this failure was
attributable to OCS, not adequately explained, and harmful to
Melissa.
B. OCSs Failure To Train Its Caseworker on How To Locate
and Communicate with Jon While He Was in State Prison
Was Unexplained and Harmful.
The second OCS social worker assigned to this case did
not know how to locate and contact a parent in state custody.
She testified she contacted Jon in state prison just once between
April and August 2006, that this contact did not occur until July
2006, and that she did not contact Jon earlier because she did
not know how to find or communicate with someone in state
custody. In fact, she testified that she did not receive any
guidance on how to communicate with state inmates, that this case
was a communication nightmare, and that she had not heard of the
VINE-line for locating inmates or the Evercom phone system for
calling and receiving calls from inmates. The caseworker also
testified that when she took over the Seward OCS office, which
had been handled by transient social workers coming in and out of
the office and hadnt been manned for seven months, she received
just two weeks of training.
OCS undoubtedly faces geographic and budgetary
challenges, but if it is to meet its active efforts burden, it
must ensure that caseworkers receive adequate training,
supervision, and access to resources. The near lack of
communication with Jon while he was in prison for four months in
2006 inhibited his ability to make progress on his case plan and
delayed OCSs ability to determine whether he was a likely
candidate for reunification.13
The record shows that Melissas lack of contact with Jon
during this four-month incarceration was damaging. Jons
caseworker testified that Melissa was happy and well attended to
before the March 2006 pre-disposition hearing, and in its pre-
disposition report OCS described Jon and Melissa as having
healthy bonds of trust and affection. Melissa was only eighteen
months old when Jon was incarcerated in 2006. OCS knew that she
was well-bonded to Jon and that she could not be placed with Mae
while Jon was in jail. Yet OCS did not arrange any visits
between Melissa and Jon during this four-month period of
incarceration. By August 2006, when Melissa had been out of
contact with Jon for four months and when OCS placed her in her
current foster home, she was exhibiting severe attachment
disorder symptoms, including suffering serious constipation that
required medication, engaging in self-injurious behavior (biting
her cheeks and cutting her gums), hiding food in her cheeks,
holding her breath, exhibiting social withdrawal and
hypersensitivity to touch, whispering, having anxiety and trouble
sleeping, using little emotional expression or reaction, and
showing expressive language delays. OCSs inaction while Jon was
incarcerated in 2006 was neither consistent with active efforts
nor with ICWAs policy goal of protecting the Indian childs best
interests.14
C. The Failure To Follow Statutory Placement Preferences
and the Delay in Exploring Placement With Paternal
Relatives Were Attributable to OCS, Inadequately
Explained, and Harmful.
The record and testimony contain substantial evidence
showing that OCS failed to train its social worker on placement
preferences and that this failure caused an impermissible delay
in pursuing a family placement per ICWAs placement preferences.15
The record reveals that OCS considered Mae, Maes mothers family,
and a non-relative Alaska Native family as preferential
placements over Jon or his non-Native family.16
For nearly two years, from June 2005 (when OCS took
Melissa into emergency custody) until April 2007 (after Mae asked
to relinquish her parental rights), OCS identified reunification
with Mae as the permanent goal. Reunification with Mae remained
the goal though Mae was in and out of treatment and jail and was
out of contact with OCS for extended periods of time. Indeed, in
July 2006 OCS expressed concern about pursuing placement with
Jons relatives in Washington because that would make
reunification more difficult[] when the mother resurfaces, though
by this time Mae had been out of contact with OCS for around four
months. Placement with Mae remained the goal even after she
expressly refused to work on her case plan in fall 2006. This
persistent focus on Mae is especially concerning because it
caused OCS to delay researching a family placement with one of
Jons relatives, though OCS knew Mae had an ongoing and long-term
addiction, had not successfully worked her case plans with her
previous children, and was not likely to succeed with Melissa.
OCS did not fill out an ICPC packet for placement with
Jons family until September 2007. This was a year and a half
after Jon gave OCS information about his family, and a year and a
half after the guardian ad litem recommended an ICPC packet be
prepared for Jons parents in Washington. It was also a year
after Mae asked OCS to contact Jons family for placement, seven
months after Mae asked to relinquish her parental rights, and
three months after her parental rights were terminated. Although
the record reveals that one of Jons siblings discouraged OCS from
placing Melissa with Jons elderly parents, once OCS contacted
Jons other siblings, it discovered that at least two were
interested in placement. In fact, Jons brother was preliminarily
approved, but because he moved to another state during the
placement review due to a job transfer, the placement was denied.
The result may have differed had Jons brother been contacted
earlier in the case.
The delay in attempting to make contact with Jons
family and in filling out an ICPC packet for placement with his
family resulted from OCSs failure to train its caseworker on
ICWAs placement preferences. It is concerning that the testimony
before the trial court revealed confusion within OCS about ICWAs
preference for placement with a biological parent or that parents
extended family in instances where that preference order results
in placement with family that is not Native.17
The caseworkers unfamiliarity with ICWAs placement
preferences and OCSs delay in considering a permanent placement
with Jons family contributed to the length of time it took to
achieve permanency for Melissa. The delay in achieving
permanency caused harm to Melissa; while waiting for a permanent
home, she went through three placements and developed an
attachment disorder. The confusion over ICWAs placement
preferences and the delay in pursuing placement with Jons family
resulted in a failure to make active efforts to prevent the
breakup of the Indian family.
III. CONCLUSION
Melissa has made important gains in her current foster
home, and I agree with the court that she will benefit by
remaining there. But in my judgment, the conclusion that OCS met
its active efforts burden cannot be reconciled with the
avoidable, inadequately explained, and harmful delays described
above. For these reasons, I respectfully dissent from the courts
active efforts analysis.
_______________________________
1 Pseudonyms have been used to protect the privacy of the
family members.
2 See 25 U.S.C. 1903(4) (2006).
3 The Anchorage supervisor stated that such a transfer
would not really fit policy. Robyn Noel remained Jons OCS worker
through the termination trial.
4 See 25 U.S.C. 1901-1923, 1931-1934, 1951-1952, 1961-
1963 (2006); AS 47.10.088; CINA Rule 18; Carl N. v. State, Dept
of Health & Soc. Servs., Div. of Family & Youth Servs., 102 P.3d
932, 935 (Alaska 2004).
5 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
6 AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i).
7 See 25 U.S.C. 1903(4). Although Jon is not Indian,
ICWA applies because Melissa is Indian. See K.N. v. State, 856
P.2d 468, 474 n.8 (Alaska 1993).
8 25 U.S.C. 1912(d); CINA Rule 18(c)(2)(B).
9 25 U.S.C. 1912(f); CINA Rule 18(c)(4).
10 CINA Rule 18(c)(3); see also AS 47.10.088(c). Jon does
not appeal this finding.
11 Rick P. v. State, Office of Childrens Servs., 109 P.3d
950, 954-55 (Alaska 2005) (CINA); L.G. v. State, Dept of Health &
Soc. Servs., 14 P.3d 946, 950 (Alaska 2000) (ICWA).
12 E.A. v. State, Div. of Family & Youth Servs., 46 P.3d
986, 989 (Alaska 2002) (beyond a reasonable doubt likely to cause
serious harm); T.F. v. State, Dept of Health & Soc. Servs., 26
P.3d 1089, 1092 (Alaska 2001) (active efforts).
13 Audrey H. v. State, Office of Childrens Servs., 188
P.3d 668, 672 (Alaska 2008) (internal quotation marks omitted)
(quoting Brynna B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).
14 Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177,
184 (Alaska 2008) (internal quotation marks omitted) (quoting
Martin N. v. State, Dept of Health & Soc. Servs., Div. of Family
& Youth Servs., 79 P.3d 50, 53 (Alaska 2003)).
15 See Rick P., 109 P.3d at 956.
16 The court found Jons testimony that he tried to call
OCS several times during this time period . . . neither credible
nor convincing; it also found that even if Jon were telling the
truth, such token efforts do not show a genuine effort to
maintain a relationship with a young child who has had minimal
contact with her father for almost half of her life. See Jeff
A.C., Jr. v. State, 117 P.3d 697, 704 (Alaska 2005) (stating that
token efforts to communicate with a child are insufficient
(quoting In re H.C., 956 P.2d 477, 481 (Alaska 1998))). Although
Jon testified that he called many times from jail but was unable
to get through, he could not produce any supporting
documentation, even though the jail required him to submit
written requests to make the calls, and he produced such requests
from 2007. We have held that trial courts are in the best
position to weigh witness credibility, and we give particular
deference to findings based on oral testimony. Josephine B. v.
State, Dept of Health & Soc. Servs., Office of Childrens Servs.,
174 P.3d 217, 222 (Alaska 2007); Martin N., 79 P.3d at 53.
According to the testimony of Jon, Noel, and Jons
parole officer, Jon failed to notify OCS of his August 2006
release, failed to provide address and contact information, and
failed to make contact by telephone or mail (except for two or
three calls to OCS, one of which resulted in Jon leaving a
voicemail) with OCS or Melissa between August 2006 and May 2007.
17 Cf. T.F. v. State, Dept of Health & Soc. Servs., 26
P.3d 1089, 1093-94 (Alaska 2001) (noting that even though state
contributed to delay in paternity testing, father bore
responsibility because he absconded before test could be
rescheduled).
18 See G.C. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 67 P.3d 648, 651-52 (Alaska 2003)
(quoting E.J.S. v. State, Dept of Health & Soc. Servs., 754 P.2d
749, 751 (Alaska 1988)); see also AS 47.10.013(a).
Jon argues the court failed to acknowledge he was
incarcerated during much of this time, but the court largely
based its findings on Jons objective conduct after he was
released from jail in August 2006.
Although Jon expressed his desire to have custody of
Melissa and testified he requested pictures and visits with her,
the superior court properly focused on objective evidence, not
Jons subjective intent. See In re B.J., 530 P.2d 747, 749
(Alaska 1975).
19 See G.C., 67 P.3d at 651.
20 AS 47.10.088(a)(2); see also AS 47.10.088(b) (stating
that court may consider any fact relevant to childs best
interests, including the likelihood of returning the child to the
parent within a reasonable time based on the childs age or
needs); Rick P., 109 P.3d at 958 (stating that fact that young
child has lived without parent for significant period of time may
be sufficient evidence of substantial risk of mental injury).
21 See Stanley B. v. State, Div. of Family & Youth Servs.,
93 P.3d 403, 407 (Alaska 2004).
22 See Debbie G. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., 132 P.3d 1168, 1170-71 (Alaska 2006)
(explaining that AS 47.10.088(a) permits termination of parental
rights to achieve permanent placement because moving children can
be disruptive and unhealthy (citing Stanley B., 93 P.3d at 408
(emphasizing childrens immediate need for permanency and
stability and risk of long-term harm if permanent placement is
not made immediately))); Carl N. v. State, Dept of Health & Soc.
Servs., Div. of Family & Youth Servs., 102 P.3d 932, 936-37
(Alaska 2004) (concluding father failed to remedy because expert
testified that it would be at least two years until
reunification, child had been in foster care for over three
years, and child needed stability and could not afford to wait).
23 25 U.S.C. 1912(d) (2006); CINA Rule 18(c)(2)(B).
24 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 261 (Alaska 1999) (internal quotation marks omitted)
(quoting A.M. v. State, 945 P.2d 296, 306 (Alaska 1997)).
25 Id. (citing Craig J. Dorsay, The Indian Child Welfare
Act and Laws Affecting Indian Juveniles Manual 157-58 (1984)).
26 Id. at 261-62. Although incarceration does not absolve
the states active efforts duty, the court may consider the
practical impact of incarceration on the possibility of active
remedial efforts. Id. at 261.
27 Maisy W. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 175 P.3d 1263, 1268-69 (Alaska 2008)
(stating that although state failed to make active efforts for
three months, superior court properly looked to entirety of
efforts over three-year time period).
28 AS 47.10.086(a) provides, in relevant part: [T]he
department shall make timely, reasonable efforts to provide
family support services to the child and to the
parents . . . that are designed to prevent out-of-home placement
of the child or to enable safe return of the child to the family
home.
29 The dissenting opinion contends that OCSs failure to
obtain the paternity test results early in the CINA case was a
critical failure. Jon does not argue on appeal that any such
failure rendered OCSs efforts ineffective.
30 Jon underwent the assessment in August 2005. SeaView
did not recommend any follow-up treatment. The chemical
dependency counselor who conducted the assessment later testified
that Jon provided incomplete information and that had he known
about Jons criminal and substance abuse histories, he might have
recommended treatment.
31 See, e.g., Thomas H. v. State, Dept of Health & Soc.
Servs., Office of Childrens Servs., 184 P.3d 9, 16 (Alaska 2008);
E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 990
(Alaska 2002); N.A. v. Div. of Family & Youth Servs., 19 P.3d
597, 602-04 (Alaska 2001); In re J.W., 921 P.2d 604, 609-10
(Alaska 1996).
Jon also argues that OCS failed to make active efforts
because it should have transferred the case to Anchorage. Even
if transferring the case would have facilitated more visits
between Jon and Melissa, when the case and OCSs overall efforts
are considered in their entirety, OCSs failure to transfer the
case does not demonstrate that OCS did not make active or
reasonable efforts to reunite the family. See Maisy W., 175 P.3d
at 1268-69; Thomas H., 184 P.3d at 16.
Our conclusion that the superior court did not err in
holding that the state met its active efforts requirement also
disposes of Jons argument that the state failed to meet the lower
reasonable efforts requirement in AS 47.10.086. Cf. Winston J.
v. State, Dept of Health & Soc. Servs., Office of Childrens
Servs., 134 P.3d 343, 347 n.18 (Alaska 2006) (applying reasoning
of ICWA active efforts cases to AS 47.10.086 reasonable efforts
case).
32 AS 47.10.084(c); AS 47.10.080(p) (stating that
reasonable visitation is determined by considering in part nature
and quality of relationship between parent and child before child
was committed to OCS custody).
33 Compare D.H. v. State, 723 P.2d 1274, 1276-77 (Alaska
1986) (holding that decision permitting foster parents living in
Fairbanks to relocate to Alabama was de facto termination of
parental rights because father was virtually penniless and state
would not pay for him to fly to see child), with A.H. v. State,
779 P.2d 1229, 1234 & n.10 (Alaska 1989) (holding, in case in
which state placed children in foster home in Anchorage, mother
was in Juneau, familys financial situation prohibited regular
visitation, and state had goal of visitation, that there was no
de facto termination of parental rights because facts were not as
extreme as those presented in D.H.).
34 25 U.S.C. 1915(a) (2006); cf. AS 47.14.100(e)(3)
(preferring placement with family members, then family friends,
then licensed foster homes that are not family members).
35 The dissenting opinion correctly notes that the
guardian ad litem recommended preparing an ICPC packet for Jons
parents in March 2006, and that OCS does not appear to have
prepared an ICPC packet for any member of Jons family until it
did so for Jons brother and sister-in-law, Robert and Betty, in
September 2007. Despite that single failing, OCS made sufficient
active efforts to place Melissa with Jons family, including
getting information from Jon about his family in March 2006;
asking Jon for his parents contact information in July 2006;
getting contact information for Jons family from Mae in September
2006; contacting Jons parents and one of his sisters in October
and November 2006; creating a case plan in September 2007 that
included exploring Jons family for possible placement options;
and contacting Robert and Betty and preparing an ICPC packet for
them in September 2007.
36 See 25 U.S.C. 1915(a); AS 47.14.100(e)(3).
37 See, e.g., Roland L. v. State, Office of Childrens
Servs., 206 P.3d 453, 456-57 (Alaska 2009) (holding that OCSs
failure to make active efforts for first three months of case,
during which time father was incarcerated, did not determine
termination outcome); Maisy W. v. State, Dept of Health & Soc.
Servs., Office of Childrens Servs., 175 P.3d 1263, 1268-69
(Alaska 2008).
38 The superior court based its active efforts finding on
the following factual findings, all of which are supported by the
record:
OCS developed a case plan that included a
referral for a substance abuse assessment and
following all recommendations, providing
stable and suitable housing, obtaining
parenting education support, providing for
[Melissas] basic needs, and establishing
[Jons] paternity in order to qualify [Jon]
for certain services/programs. OCS also
advocated for [Jon] on four separate
occasions to receive special funding from the
Department to help him with purchases to meet
[Melissas] basic needs; drafted a letter to
assist [Jon] in qualifying for public
assistance and housing assistance;
coordinated to set up multiple visits between
the mother and [Jon] and [Melissa]; update
the case plans for both parents as the case
progressed; worked with [Jon] to help him
relocate to Anchorage in order to more easily
find a job and appropriate housing; provided
day care assistance to allow [Jon] to apply
for jobs and housing during the day. OCS
case worker Robyn Noel made numerous attempts
to locate and contact [Jon] by calling the
Anchorage jail, [Jons] attorney, [Jons] Kenai
probation officer, and [Jons] Anchorage
probation officer, as well as leaving and
posting messages at Beans Caf‚ and the
Brother Francis Shelter. OCS also personally
met with [Mae] in Atquasuk and obtained the
names of paternal relatives for possible
permanent placement and then followed up with
the identified paternal family members to
discuss placement of [Melissa]. OCS
investigated individuals identified by [Mae]
as possible placement/adoption alternatives,
including following up with several of [Jons]
family members. OCS further submitted an
ICPC request for [Robert and Betty S.] for
possible placement and adoption. This
placement fell through when [Robert and
Betty] moved and were no longer available for
consideration. OCS also arranged a visit
between [Melissa] and [Jon] on September 24,
2007, and referred [Melissa] for
psychological evaluation with Dr. Turner to
assess the quality of her relationship with
her current foster family and any impact on
her to remove her from that family.
39 25 U.S.C. 1912(f) (2006); CINA Rule 18(c)(4).
40 J.J. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 38 P.3d 7, 11 (Alaska 2001); L.G. v.
State, Dept of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska
2000) (quoting E.M. v. State, Dept of Health & Soc. Servs., 959
P.2d 766, 771 (Alaska 1998)).
41 E.A. v. State, Div. of Family & Youth Servs., 46 P.3d
986, 991 (Alaska 2002); L.G., 14 P.3d at 950.
42 See C.J. v. State, Dept of Health & Soc. Servs., 18
P.3d 1214, 1218 (Alaska 2001); J.J., 38 P.3d at 9-10.
43 Marcia V. v. State, Office of Childrens Servs., 201
P.3d 496, 507 (Alaska 2009) (holding that this was not case in
which over-reliance on documents fatally weakened the experts
testimony because although expert had not interviewed mother,
daughter, or other service providers, expert had reviewed
numerous documents and experts testimony covered important facts
in case); E.A., 46 P.3d at 991-92 (holding testimony sufficient
because, although experts had not interviewed parent, they had
substantial contact with child, testified to specifics of childs
needs and behavior, and testified to relationship between childs
behavior and mother).
44 See E.A., 46 P.3d at 992 (relying in part on
substantial evidence of mothers instability and parental
incapacity outside of the experts testimony).
1 25 U.S.C. 1902 (2006); see also A.B.M. v. M.H., 651
P.2d 1170, 1172 (Alaska 1982) (citing H.R. Rep. No. 95-1386, at 8
(1978) (stating the same), as reprinted in 1978 U.S.C.C.A.N.
7530, 7530). ICWAs requirements apply to non-Indian biological
parents of Indian children. See In re Adoption of T.N.F., 781
P.2d 973, 978 (Alaska 1989).
2 Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 55-56 (Alaska 2003)
(identifying risk of harm resulting from disruptions in a young
childs critical attachment process and emphasizing need to
achieve permanency expeditiously to avoid this risk (quoting AS
47.05.065(5))); see also Debbie G. v. State, Dept of Health &
Soc. Servs., Office of Childrens Servs., 132 P.3d 1168, 1170-71
(Alaska 2006) (stressing the need to achieve a permanent
placement to avoid multiple temporary placements).
3 See Roland L. v. State, Office of Childrens Servs., 206
P.3d 453, 456-58 (Alaska 2009); Maisy W. v. State, Dept of Health
& Soc. Servs., Office of Childrens Servs., 175 P.3d 1263, 1268-69
(Alaska 2008); E.A. v. State, Div. of Family & Youth Servs., 46
P.3d 986, 990 (Alaska 2002); N.A. v. State, DFYS, 19 P.3d 597,
599, 603 (Alaska 2001).
4 AS 47.05.065(5).
5 See 25 U.S.C. 1912(d) (2006); N.A., 19 P.3d at 603-04
(establishing approach of looking to entirety of case and citing
Letitia V. v. Super. Ct., 97 Cal. Rptr. 2d 303, 308-09 (Cal. App.
2000); In re A.R.P., 519 N.W.2d 56, 60 (S.D. 1994)).
6 See N.A., 19 P.3d at 603-04 (Other courts have
expressly held that where efforts have been made to address a
substance abuse problem, the parent has shown no desire to
change, and parental rights were terminated with respect to one
child, ICWA allows the superior court to consider all of the
efforts made by the state to avoid the breakup of the family in
assessing whether those efforts were reasonable. (citing Letitia
V., 97 Cal. Rptr. 2d at 308-09; In re A.R.P., 519 N.W.2d at 60));
see also E.A., 46 P.3d at 991 (same) (citing N.A., 19 P.3d at 603-
04).
7 See E.A., 46 P.3d at 989-90; N.A., 19 P.3d at 602.
8 See CINA Rule 18(c)(2)(B) & note; ch. 20, 1-2, 8, SLA
2006 (heightening burden of proof); Roland L., 206 P.3d at 456
(applying clear and convincing burden of proof and relying on
Maisy W., 175 P.3d at 1268-69, and E.A., 46 P.3d at 990, to look
to entirety of OCSs involvement); Maisy W., 175 P.3d at 1268-69
(applying clear and convincing burden of proof and relying on
E.A., 46 P.3d at 990, and N.A., 19 P.3d at 599, 603, to look to
entirety of OCSs involvement).
9 See, e.g., Roland L., 206 P.3d at 456-57; Maisy W., 175
P.3d at 1269.
10 See 25 U.S.C. 1902 (2006) (The Congress hereby
declares that it is the policy of this [n]ation to protect the
best interests of Indian children . . . .).
11 Slip Op. at 13.
12 The record does not indicate the exact date when Jon
took the paternity test, but the record suggests he took the test
before late October.
13 The courts opinion correctly notes that the trial court
did not find Jons claims that he tried to contact OCS while he
was in prison credible. Slip Op. at 8-9 n.16. But OCS had an
obligation to contact Jon; this is an ICWA case and OCS is
obliged to use active, not passive, efforts.
14 25 U.S.C. 1902 (2006).
15 See 25 U.S.C. 1915(a) (2006) (preferring extended
family over non-family Native homes); id. 1903(2) (defining
extended family); In re Adoption of Sara J., 123 P.3d 1017, 1021
n.14 (Alaska 2005) ([I]f one parent is Native and the other is
not, the Indian childs extended family may include non-Native
members who might argue for preferred placement status under
ICWA.).
16 Jon is African-American.
17 See 25 U.S.C. 1915(a) (2006) (preferring extended
family over non-family Native homes); id. 1903(2) (defining
extended family); In re Adoption of Sara J., 123 P.3d at 1021
n.14.
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