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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doe v. State, Dept. of Health & Social Services, Office of Children's Services (1/13/2012) sp-6636
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHN DOE, )
) Supreme Court No. S-14310
Appellant, )
) Superior Court No. 4BE-07-00017 CN,
v. ) 4BE-07-00018 CN, 4BE-07-00019 CN,
) 4BE-07-00020 CN, 4BE-07-00021 CN,
STATE OF ALASKA, DEPARTMENT ) 4BE-07-00022 CN
OF HEALTH & SOCIAL SERVICES, )
OFFICE OF CHILDREN'S SERVICES, ) O P I N I O N
)
Appellee. ) No. 6636 - January 13, 2012
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Bethel, Leonard Devaney III, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Appellant. Megan R. Webb, Assistant Attorney General,
Anchorage, and John J. Burns, Attorney General, Juneau, for
Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
The Bethel Superior Court entered an order terminating an incarcerated
father's parental rights to three of his five children. The father appeals, arguing that the
superior court erred by finding that the State made active efforts to prevent the breakup
of his family and finding that it was in the children's best interests for his parental rights
----------------------- Page 2-----------------------
to be terminated. Because the superior court's active efforts and best interests findings
were supported by the record and not clearly erroneous, we affirm the superior court's
ruling terminating the father's parental rights.
II. FACTS AND PROCEEDINGS
John and Jane Doe are the biological parents of five minor children: 16-
year-old Preston, 14-year-old Adam, 11-year-old Trevor, ten-year-old Mathilda, and six-
year-old Nin.1 The family is Yup'ik, and the children are Indian children as defined by
the Indian Child Welfare Act (ICWA).2 Both John and Jane take pride in the Yup'ik
culture; John wants his children to remain connected to the Yup'ik community.
A. John's Criminal History, Alcohol Abuse, And Incarceration
John has a substantial criminal history. In 1985, he was convicted of
second-degree murder and received an eighteen year sentence with ten years suspended.
Between August 1998 and September 2000, John was convicted of disorderly conduct,
assault in the fourth degree, driving while intoxicated, and indecent exposure. In 2001,
John was convicted of domestic violence assault. In 2004, John was convicted of
assaulting his wife, Jane, and was also convicted of misconduct involving weapons in
the fourth degree. Around the same time in 2004, John was convicted of attempted
sexual abuse of a minor in the third degree and was required to register as a sex offender;
he was later arrested for failing to register.
In 2006, the Office of Children's Services (OCS) received reports
indicating that John had physically and sexually abused his stepdaughter, Nellie, who
1 Pseudonyms have been used to protect the identities of the parties.
2 25 U.S.C. §§ 1901-1923 (2006).
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was 14 years old at the time.3 Nellie told OCS and the Alaska State Troopers that John
had sexually abused her "more than ten times," starting when she was seven years of age.
Nellie also stated that she told Jane, her mother, about the abuse, but her mother did not
call the police. John was subsequently convicted of sexual abuse of a minor in the
second degree and sentenced to 12 years in prison, with four years suspended. John is
currently serving that sentence; he is due to be released in 2014.
Around the time Nellie's allegations were being investigated, OCS
conducted a safety assessment of the Doe home. A social worker interviewed the
children, and both Nellie and Mathilda reported that John had physically abused them
by hitting them on the back. In a later, unrelated contact with OCS, Jane stated that she
had been repeatedly abused by John over the years. Jane stated that, on various
occasions, John had pointed a gun at her head, choked her, hit her on the head, broken
her ribs, and threatened to kill her.
John asserts that his trouble with the police has always been related to
alcohol abuse. Many of his criminal sentences included the probationary condition that
he refrain from possessing or consuming alcohol. John completed a roughly five-month-
long alcohol treatment program at the Ernie Turner Center in Anchorage in 2001. John
claims to have remained sober for "a couple years" following this treatment, but soon
after completing the program, he was convicted of assault and ordered to report to the
Bethel Alcohol Safety Action Program.4 It appears that alcohol played a role in some of
John's subsequent convictions as well.
3 Nellie's case was separated from the other children's in 2007.
4 The record does not reveal whether John completed this ordered treatment.
-3- 6636
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B. OCS Involvement With The Doe Family
From 1993-2002, OCS substantiated eight reports of neglect in the Doe
home.5 On October 12, 2002, Jane was arrested while intoxicated in a hotel room and
placed in jail. John was apparently not available to care for the children and OCS was
called to find a place for Trevor and Mathilda to sleep. The next morning, Jane was
released, but she did not attempt to find her children. Instead, she returned to a bar to
continue drinking. A relative later helped OCS reunite Jane with the children and OCS
closed its inquiry after learning that Jane had a full-time job and did not drink daily.
OCS received two additional reports that Jane was neglecting her children in late 2003
and early 2004; John may have been incarcerated at the time.6 The children were
temporarily placed in the home of a sober relative on each of these occasions.
In July 2004, Jane became highly intoxicated while she was taking care of
Trevor. Jane was arrested and Trevor was placed in temporary care for the night. In
September 2004, OCS received a report that Jane went on a drinking binge and left her
children unsupervised for days. John may have been incarcerated or engaged in criminal
proceedings when the July and September 2004 incidents occurred. In June 2006, a
medical worker reported to OCS that Nin was being neglected by John and Jane.
Later in 2006, OCS received the report of John's physical and sexual abuse
of Nellie. An OCS worker subsequently visited the Doe home and spoke with Jane. The
worker and Jane developed a safety plan under which John would not be allowed to
5 The details of these incidents are not contained in the record.
6 In its trial brief, OCS asserted that John was incarcerated during each of a
series of instances in which Jane neglected the children. This assertion is not
conclusively established by the record, although the fact that OCS was unable to place
the children with John after removing them from Jane's custody suggests that he may
have been incarcerated.
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return to the home and Jane would not have alcohol in the home. John briefly returned
to the home in January 2007, assaulted Jane, and was arrested. After Jane became
intoxicated on consecutive nights that month, the children were temporarily taken to stay
with relatives. Jane participated with OCS to update its safety plan after the January
2007 incidents, promising to refrain from drinking in the home and agreeing to undergo
substance abuse and mental health assessments.
In February 2007, OCS was informed that Jane and two men were
intoxicated in the Doe home. OCS removed the children; later that night, Jane was
sexually assaulted by one of the men in her home.
After the Doe children were removed from Jane's care, OCS workers
created a case plan to provide for the safety of the children and the reunification of the
Doe family. OCS discussed the plan with both John and Jane, and revised the plan twice
between 2007 and 2008. John's case plan required him to "request parenting classes
through the legal system," successfully complete alcohol treatment, and successfully
complete sex offender treatment. John signed the case plan, indicating that he had read
and understood it, and an OCS social worker met with him in jail to explain the plan and
what it required him to do. John later testified that OCS workers largely neglected to
explain the case plan after 2007, but one worker testified that OCS had again explained
the case plan to John in a 2009 telephone call.
OCS facilitated in-person contact between Jane and the children on multiple
occasions. OCS workers also helped Jane access multiple substance abuse treatment
programs, mental health treatment, and parenting classes. One worker tried to help Jane
procure stable housing.
OCS communicated with John by telephone during this period and John
met with an OCS worker in person on one occasion. During 2007 and 2008, OCS
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enabled John to have roughly weekly telephone conversations with his children. John
encouraged the children to read the Bible when he spoke to them. He also wrote them
letters. After John was transferred to a new prison in late 2008, his telephone
conversations with his children occurred less frequently, although OCS continued to
facilitate these contacts. It appears that telephone conversations sometimes did not take
place because an OCS worker was sick or leaving town. In other instances, the prison
prevented John from making calls.
During this period, the Doe children were transferred among many different
living arrangements. Preston moved between placements 14 times from February 2007
to March 2009; Adam was in nine different placements during the same period. OCS
found relatives to take custody of some of the children at times, but these relative
placements were short-lived. The relatives who took temporary custody of some the
children included John's parents, John's cousin, Jane's sister, and other relatives of Jane.
Some of the children severely misbehaved, and the relatives were uniformly unable or
unwilling to assume custody for any extended period. OCS workers investigated other
potential placements with John's relatives. An OCS worker contacted John's sister, but
she declined to care for any of the children. John's daughter from another marriage was
suggested as a potential placement, but an OCS worker did not have her contact
information.7 Other relatives failed background checks and were deemed unsuitable
placements.
7 At the termination trial, an OCS worker testified that she did not contact
John's daughter, although the daughter was proposed as a potential placement for the
Doe children. The worker testified that she "saw that [the daughter was proposed as a
placement] on an e-mail, but I didn't know the number so I did ask through e-mail what
was her number but I didn't get a response back." From this testimony, it is unclear who
failed to respond to the worker's request: members of the Doe family or other OCS staff.
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As of the termination trial in November 2010, the Doe children were housed
in the following placements: (1) Preston was living in a foster placement in Napakiak;
(2) Adam was living in the Pathway Boys Group Home in Anchorage; (3) Trevor had
been recently removed from a long-term foster home and was living in a new foster
placement; (4) Mathilda was living in a non-relative foster home where she had been
housed since early 2009; and (5) Nin was living in a non-relative foster home where she
had been housed since 2007.
Sometime after John was incarcerated for sexually abusing Nellie, Jane
entered into a relationship with Olaf, a convicted sex offender. Later, the couple had a
child. At the time of trial, Jane and Olaf lived together with their child, but Olaf did not
want any of Jane's other children to live with them.
C. Proceedings
OCS filed an emergency petition for adjudication of children in need of aid
and for temporary custody in February 2007. OCS was granted custody. In April 2007,
both John and Jane stipulated that their children were in need of aid and agreed to allow
OCS to take custody of the children for up to two years.
A permanency hearing was held in superior court in December 2007. The
superior court approved OCS's plan to attempt to reunify the family, although it noted
that neither parent had made substantial efforts to remedy their conduct. At a second
permanency hearing held in December 2008, the superior court approved a plan to
concurrently seek adoptive homes for the children and attempt to reunify them with their
parents. In February 2009, OCS petitioned to extend its custody of the children for
another year, and the superior court granted the petition. At the third permanency
hearing, in November 2009, the superior court approved a permanent plan of adoption,
finding that, despite OCS's active and reasonable efforts, it was not in the children's best
-7- 6636
----------------------- Page 8-----------------------
interests to return to their parents' custody. The superior court instructed OCS to file a
petition to terminate the parental rights of both parents and OCS filed a petition in
March 2010.
A termination trial was held in November 2010 and January 2011.
Representatives from the Yup'ik tribe and the village of Napakiak8 were present at the
trial. Six OCS workers testified regarding the agency's involvement with the Doe family
over the years. John opposed the termination of his parental rights and testified on his
own behalf. Jane opposed the termination of her parental rights but she did not testify.
John admitted that he was aware of his obligations under the case plan, and
he expressed a desire to comply with the plan and remain in contact with his children. He
testified that he spent a year taking care of Trevor in the early-2000s when Trevor was
sick with pneumonia, and that he was sober and financially supporting the children during
that period. And he testified that he completed a life skills/parenting class while
incarcerated and requested a substance abuse evaluation from the Department of
Corrections but received no response. According to John, he attempted to attend alcohol
treatment early in his sentence, but that had been "difficult." It was uncontested that John
was unable to participate in treatment programs at the time of the termination trial because
he was segregated from the general prisoner population. John was placed in segregation
because contraband was found in his cell. John testified that he wanted to participate in
treatment programs, including sex offender treatment,9 once his segregation ended.
8 John's parents apparently live in Napakiak; the Doe family also seems to
have lived there intermittently.
9 In 2009, John stated that because he was appealing his sex offense
conviction, he was unwilling to participate in sex offender treatment. But at the
termination trial, John stated that he wanted to undergo sex offender treatment, though
(continued...)
-8- 6636
----------------------- Page 9-----------------------
On April 11, 2011, the superior court issued an order on the termination of
John and Jane's parental rights. The superior court ruled that OCS proved by clear and
convincing evidence that all five children were in need of aid under AS 47.10.011(1),10
(2),11 (8)(B)(i)-(ii),12 (9),13 (10). 14 The court also found that OCS proved by clear and
convincing evidence that neither parent had remedied the conduct causing the children
to be in need of aid.
The court then ruled that OCS demonstrated by clear and convincing
evidence that it made active efforts to reunify the family. The superior court's active
efforts analysis centered on a discussion of OCS's interactions with Jane. The superior
court found that OCS: developed "many case plans" for Jane; "provided [Jane] with
support to work her case plan"; expended "[e]xtensive efforts and time . . . just trying to
locate [Jane]"; attempted to place Jane in substance abuse treatment; and "provided phone
cards and visitation between [Jane] and her children." The superior court also found that
there were "some concerning gaps in active efforts between July 2009 and January 2010,"
9(...continued)
he denied that he was a "sex offender."
10 Subsection (1) of the statute pertains to abandonment.
11 Subsection (2) pertains to parents' absence and incarceration.
12 Subsection (8)(B) pertains to prospective mental injury to the child.
13 Subsection (9) pertains to neglect.
14 Subsection (10) pertains to parental substance abuse. The superior court
also ruled that the female children - but not the male children - were in need of aid
under AS 47.10.011(7), which relates to sexual abuse. Finally, the court ruled that
Preston, Adam, and Mathilda were in need of aid under AS 47.10.011(8)(A), which
relates to actual mental injury suffered by children.
-9- 6636
----------------------- Page 10-----------------------
noting that OCS "could not explain why there were no documented contacts with [Jane]
during that timeframe." But in consideration of OCS's overall involvement in the case
and Jane's lack of desire to have her children back, the court ultimately found that active
efforts had been established by clear and convincing evidence.
The superior court found that OCS properly focused its reunification efforts
on Jane, given John's incarceration. The court also identified several steps OCS had
taken to promote reunification and provide rehabilitative services to John. It noted that
OCS had encouraged John "to take parenting classes and obtain substance abuse
treatment," involved John in case plan reviews, and "provided visitation between [John]
and his children." The court concluded that "[b]ased on his maximum security status
[John] created little opportunity for the State to do much more than encourage him and
ensure he had visits with his children. The State did this."
The court also found that OCS made active efforts to "assist the children
with foster homes, residential treatment, and counseling" and noted that "[s]ocial workers
visited with the children regularly," and OCS made "extensive efforts to ensure the
siblings visited with each other." Additionally, the superior court found that OCS "made
excellent efforts to locate relative placements and continues to do so . . . . These efforts
also go toward reunifying the family."
The court ruled that OCS proved, beyond a reasonable doubt, that continued
custody of the children by either parent was likely to result in serious emotional or
physical damage to the children. Finally, the court found, by a preponderance of the
evidence, that the termination of John and Jane's parental rights to Trevor, Mathilda, and
Nin was in the children's best interests. The court entered a judgment terminating the
parents' rights to the three younger children, focusing on the children's need for
permanency:
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----------------------- Page 11-----------------------
These children are young, and have been in State custody for
four years. Their mother cannot have them in her home.
Their father will be off probation in 2019. At that time,
[Trevor] will be age 19[,] [Mathilda] will be age 20, and [Nin]
will be age 14.[15] There is an urgent need for permanency for
these children. Terminating these parental rights is necessary
to achieve a permanent home for them.
The court found that it was not in the best interests of Preston or Adam to terminate John
and Jane's parental rights because there was no evidence of the older boys' feelings about
termination. John appeals the termination of his parental rights to Trevor, Mathilda, and
Nin. Jane did not appeal the superior court judgment.
III. STANDARD OF REVIEW
"In a case involving the termination of parental rights, we review a superior
court's findings of fact for clear error."16 "Findings are clearly erroneous if, after
reviewing the record in the light most favorable to the prevailing party, we are left with
a 'definite and firm conviction that a mistake has been made.' "17 Best interest
determinations are factual findings reviewed under a clearly erroneous standard.18 The
15 During his five-year probationary period, John will be unable to have
children under the age of 16 living in his household. Contrary to the superior court's
findings, Mathilda will be 16 years of age by 2017 and 18 years of age by 2019. It
appears she would be permitted to live with John in 2017 under the terms of his
probation.
16 Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 175 P.3d 1263, 1267 (Alaska 2008).
17 Id. (quoting A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946, 950
(Alaska 2000)).
18 Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 254 P.3d 1095, 1104 (Alaska 2011).
-11- 6636
----------------------- Page 12-----------------------
sufficiency of the state's "active efforts" under ICWA presents a mixed question of law
and fact; we review questions of law de novo.19
IV. DISCUSSION
A. The Superior Court Did Not Err In Finding That OCS Engaged In
Active Efforts To Reunify The Doe Family.
John argues that the superior court erred in finding, by clear and convincing
evidence, that OCS made active efforts to "provide remedial services to John and keep
Trevor[,] Mathilda, and Nin in their Native family." John focuses on two alleged
deficiencies in OCS's efforts: (1) OCS workers' lack of contact with him during his
incarceration; and (2) OCS's failure to attempt to find placements for the children with
"all living adult family members" of the Doe family.
John argues that "ICWA has no exception for incarceration[] and requires
active efforts even when a parent is incarcerated." He contends that "no such effort was
made on [his] behalf," arguing that OCS workers had "a shamefully small amount of
contact with him." OCS responds that the sum of its contacts with the Doe family
demonstrates that it made active efforts to prevent the breakup of the family. OCS
highlights John's incarceration as a factor relevant to the sufficiency of its efforts, and
notes that it had some discretion in determining what efforts to pursue. OCS then
discusses its extensive history of involvement with the Doe family, including its
"concerted efforts to ensure the children could remain safely in their mother's care[] while
their father was incarcerated." OCS also identifies its efforts in relation to John, noting
that workers visited John in jail, explained his case plan to him, and enabled him to have
telephone contact with his children.
19 Id.
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----------------------- Page 13-----------------------
OCS acknowledges that social workers appear to "have had minimal
contact" with John after he was transferred to a new prison in late-2008, and concedes
that "additional social worker contact with John may have been preferable." But OCS
argues that additional contact "would not have altered the situation in any substantive
respect. John would still have been incarcerated, in segregation, and unable to engage in
any services . . . ." OCS argues that, in any case, the superior court "was also entitled to
consider OCS's efforts with respect to Jane," and that these efforts were "consistent and
extensive." Finally, OCS argues that its failure to find relative placements for some of the
children is irrelevant to the active efforts analysis. In the alternative, OCS argues that it
made active efforts to place the Doe children with relatives.
Before parental rights may be terminated under ICWA, that statute and the
CINA Rules require proof 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."20 We
evaluate whether the active efforts requirement has been satisfied on a case-by-case
basis;21 generally, "active efforts require that the [S]tate actually help the parent develop
the skills required to keep custody of the children," rather than merely develop a case plan
for the parent to follow.22 In evaluating whether the State has met this burden, "we look
to the State's involvement in its entirety."23
20 25 U.S.C. 1912(d) (2011); CINA Rule 18(c)(2)(B).
21 A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 261 (Alaska
1999) (citingA.M. v. State, 945 P.2d 296, 306 n.12 (Alaska 1997)).
22 Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 222 P.3d 841, 849 (Alaska 2009).
23 Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
(continued...)
-13- 6636
----------------------- Page 14-----------------------
We have held that "[n]either incarceration nor doubtful prospects for
rehabilitation will relieve the State of its duty under ICWA to make active remedial
efforts."24 But "circumstances surrounding a parent's incarceration," including "the
duration of a parent's incarceration and the services possible for incarcerated parents" can
have a "direct bearing on what active remedial efforts are possible."25 When a parent is
incarcerated, the superior court may consider, in addition to efforts made by OCS,
remedial programs offered by the Department of Corrections.26 OCS's interactions with
the non-incarcerated parent may be considered an "important aspect of the [S]tate's active
efforts to keep the family together."27
The superior court considered "the State's involvement in its entirety"28 to
find that the active efforts requirement was satisfied. The court focused on OCS's efforts
toward Jane, finding that OCS wrote a letter to help Jane get housing, provided telephone
cards and visitation between Jane and the children, and actively encouraged Jane to seek
treatment and stay in close contact with her children. The court also found that Jane
completed two treatment programs and that OCS set up substance abuse aftercare in her
village, but that Jane "disappeared." These findings were supported by the record, which
documents numerous instances in which OCS referred Jane to treatment, enabled her to
23(...continued)
212 P.3d 756, 763-64 (Alaska 2009) (quoting Maisy W. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 175 P.3d 1263, 1268-69 (Alaska 2008)).
24 A.M. v. State, 891 P.2d 815, 827 (Alaska 1995).
25 Dashiell R., 222 P.3d at 849 (quoting A.M., 891 P.2d at 827).
26 Id.
27 Id. at 850.
28 Jon S., 212 P.3d at 763-64.
-14- 6636
----------------------- Page 15-----------------------
have contact with the children, and provided her with other remedial services. The
superior court did not err by focusing on these undertakings as the foundation of its active
efforts determination; the court found that OCS fulfilled its statutory duty by attempting
to actually help Jane develop the skills required to keep custody of the children,29 and this
finding is supported by the record.
OCS's alleged failure to contact Jane for a six-month period does not change
this analysis. As the superior court correctly noted, the question of whether the State
made active efforts must be evaluated "throughout the case."30 Additionally, it appears
that OCS actually did have contact with Jane during the six-month period. The superior
court's understanding that "there were no documented contacts with [Jane]" from
July 2009 to January 2010 was based on an OCS worker's inability to remember
documented contacts during that period under cross-examination. But the documentary
evidence showed that, in November 2009, the worker referred Jane to behavioral services
and made travel arrangements to allow her to access those services. OCS's history of
contact with Jane, considered in its entirety, is clear and convincing evidence of the
agency's active efforts to provide her with remedial services and reunite her with the
children.31 These efforts are also relevant to OCS's efforts to assist John. As our court
explained in Dashiell R. v. State, OCS's active efforts toward a non-incarcerated parent
29 Dashiell R., 222 P.3d at 849.
30 See Jon S., 212 P.3d at 763-64 (holding that active efforts determination
depends on "the state's involvement in its entirety").
31 See, e.g. E.A. v. State, Div. of Fam. & Youth Servs., 46 P.3d 986, 991
(Alaska 2002) (holding that State's failure to make active efforts over seven-month
period was insignificant in light of extensive remedial efforts during remainder of case).
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----------------------- Page 16-----------------------
are important because if the children are able to stay with the non-incarcerated parent, it
is unlikely the incarcerated parent's rights will be terminated.32
John does not dispute the extent of OCS's efforts toward Jane; instead, John
argues that OCS had a "shamefully small amount of contact with him" and that, as a
result, OCS failed to make active efforts to reunify him with his children or provide
rehabilitative services. John is correct that "ICWA has no exception for incarceration,"
but he neglects to acknowledge that his incarceration "significantly affects the scope of
the active efforts that the State must make to satisfy the statutory requirement."33 OCS's
efforts easily satisfied this narrower requirement.
From the outset of his incarceration in 2007 to late-2008, OCS spoke with
John frequently by telephone and visited him in person once. During this period, OCS
enabled John to have roughly weekly telephone conversations with his children.
Although these telephone contacts occurred less frequently after John was transferred in
late-2008, the infrequency was partially related to the difficulties of making telephone
calls to him in prison. The record supports the finding that OCS actively promoted the
Doe family's reunification by facilitating John's continued interaction with his children.
OCS also helped John access remedial services to the extent it was capable
of doing so. OCS explained John's case plan to him in person after he was incarcerated,
and explained the plan again by telephone in 2009. John admitted that he was aware of
his obligations under the plan throughout his incarceration. While housed in the general
prison population - where he was eligible to receive treatment services - John
completed a life skills class, and attempted substance abuse treatment but did not
32 Dashiell R., 222 P.3d at 850.
33 A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 261 (Alaska
1999).
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----------------------- Page 17-----------------------
complete it because "it was difficult." In 2009, John was unwilling to participate in sex
offender treatment; at trial, he expressed a willingness to attend sex offender treatment
even though he was appealing his conviction and did not consider himself to be a sex
offender. But John's misconduct in prison made him ineligible to receive any treatment
until mid-to-late 2011. DOC's treatment offerings can satisfy OCS's remedial obligations
to incarcerated parents,34 and if not for his own misconduct, John would have remained
eligible for these programs. But John was reluctant or unwilling to participate even when
eligible for remedial services in prison, and his recalcitrance further limited OCS's active
efforts obligation.35
Finally, John argues that the superior court erred in finding that OCS made
"excellent efforts" to find relative placements for the children. OCS counters that "the
question of whether OCS was diligent in locating adult family members . . . willing to
care for children in its custody is not relevant to the question of whether OCS made active
efforts."
In David S. v. State, Department of Health & Social Services, Office of
Children's Services, we recognized that, under limited circumstances, "a child's
placement might affect a parent's ability to participate in remedial efforts" and might
therefore be relevant to the active efforts analysis.36 But we explained that "ordinarily the
question whether a placement decision complies with ICWA's placement preferences will
34 A.A., 982 P.2d at 263.
35 See, e.g., N.A. v. State, 19 P.3d 597, 603 (Alaska 2001) (holding "parent's
demonstrated lack of willingness to participate in treatment" may be considered in
determining whether the State has made active efforts).
36 ___P.3d___ at *10, 2011 WL 6347722 (Alaska, Dec. 16, 2011).
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----------------------- Page 18-----------------------
not be germane to the elements of termination."37 In this case, OCS's placement efforts
were not germane to its active efforts; John made no showing that the placement of the
children had any bearing on his ability to participate in remedial efforts. Further, because
it did not have guidance from our since-issued decision in David S., the trial court
considered OCS's placement efforts as a part of its active efforts analysis and found that
OCS made "excellent efforts to locate relative placements." These findings were not
clearly erroneous.
OCS contacted John's sister, but she refused to take custody of the children.
OCS succeeded at placing the children, temporarily, with John's aunt, John's parents, and
some of Jane's relatives. These relatives were uniformly unable or unwilling to care for
the children for any extended period. Other relatives failed background checks and were
deemed unsuitable placements. Although the record leaves open the possibilities that
OCS did not follow through on contacting John's daughter38 or brother, this uncertainty
does not cause us to disregard OCS's otherwise extensive relative search.
OCS developed a case plan, explained it twice, enabled John to remain in
touch with his children, and attempted to secure relative placements for the children. We
agree with the superior court that OCS had "little opportunity . . . to do much more than
encourage [John] and ensure he had visits with his children." These measures, in
conjunction with OCS's considerable efforts to help Jane, demonstrate that OCS actively
attempted to prevent the breakup of the Doe family.
37 Id.
38 See supra note 7.
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B. The Superior Court Did Not Commit Clear Error By Finding That The
Termination Of John's Parental Rights Was In His Children's Best
Interests.
John argues that the superior court clearly erred by finding that the
termination of his parental rights was in the best interests of his three youngest children.
John notes that the superior court did not terminate his parental rights to his oldest sons
and argues that this "clearly casts doubt regarding the termination of John's rights to
Trevor, who is only three years younger than Adam." John also contends that the
superior court "failed to consider [John's] strong determination to continue in his
relationship with all his children, which it was obligated to do." Finally, John argues that
the superior court "ignor[ed] ICWA's very important overarching best interests standard
that the children should remain either with their extended family or inside the tribe." John
concludes that the superior court "simply did not have enough evidence" to terminate his
parental rights.
OCS responds that the superior court's reasons for preserving John's
parental rights to his oldest sons were not transferable to the younger children and argues
that the superior court properly focused on the younger children's need for permanency
because "if termination were denied, the children could very well remain in OCS custody
for over a decade." OCS notes that Nin is housed in a pre-adoptive placement and argues
that while Trevor and Mathilda are not currently in pre-adoptive placements, this "does
not preclude the court from finding that termination of parental rights is in the children's
best interest." OCS also disputes John's claim regarding ICWA's "overarching best
interests standard," arguing that ICWA's placement preferences are "irrelevant to the
question . . . of whether termination of parental rights is in a child's best interests."
To prevail in a proceeding seeking the termination of parental rights, OCS
must prove "by a preponderance of the evidence that termination of parental rights is in
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the best interests of the child."39 A superior court may consider "any fact relating to the
best interests of the child" in its best interests analysis.40 A superior court's best interests
determinations are findings of fact, which we review under the "clearly erroneous"
standard.41
1. The superior court's decision to terminate John's parental rights
to some, but not all, of the children does not suggest clear error.
John argues that it was clear error for the superior court to terminate his
parental rights to Trevor, Mathilda, and Nin while preserving his parental rights to
Preston and Adam. But the superior court's distinction between the older boys and their
younger siblings was adequately supported by the record.
OCS's purpose in seeking the termination of parental rights was to free the
children for adoption;42 from the record, it appears that neither Preston nor Adam was
likely to be adopted. Preston was 16 at the time of trial and he was transferred between
many different placements after OCS took custody. Preston experienced significant
challenges: he was hospitalized for psychiatric problems, he was detained for allegedly
molesting a young girl, and he experienced conflict with caregivers. Adam, who was 14
at the time of trial, had been similarly unable to remain in placements for long and had
psychiatric issues. Based on these factors, the termination of John's parental rights would
likely have had little tangible effect on achieving permanency for the two boys. In
contrast, Trevor, Mathilda, and Nin had better chances, by virtue of their ages and
39 CINA Rule 18(c)(3); see also AS 47.10.088(c).
40 AS 47.10.088(b).
41 Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 254 P.3d 1095, 1104 (Alaska 2011).
42 AS 47.10.088(a).
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histories, of finding permanent placements in adoptive homes.43 John's argument that it
was illogical to terminate his rights to the younger children while preserving his rights to
Preston and Adam is unpersuasive.
2. The superior court did not commit clear error by terminating
John's rights to Trevor and Mathilda despite the children's lack
of pre-adoptive placements.
John also argues that because Trevor and Mathilda were not housed in pre-
adoptive placements at the time of the trial, the termination of John's parental rights was
not in their best interests. We have considered the effect a child's lack of pre-adoptive
placement has on the best interests determination in several cases. The general rule that
emerges from these cases is accurately summarized by OCS in its brief: "While the lack
of a pre-adoptive placement for Trevor and Mathilda may be relevant to a best-interests
finding, it does not preclude the court from finding that termination of parental rights is
in the children's best interest[s]." In Karrie B. v. Catherine J., we determined, as a matter
of law, that the lack of a pre-adoptive placement could be relevant to the best interests
analysis.44 But in Carl N. v. State, Department of Health & Social Services, we affirmed
the termination of a father's parental rights despite the lack of a pre-adoptive placement,
observing that the child's temporary foster placement had agreed to retain custody until
43 John argues that the superior court had no reason to distinguish Trevor's
best interests from Adam's, given that Trevor was "only three years younger than
Adam," and that "John has a special relationship with Trevor." But there are significant
developmental differences between an 11-year-old boy and a 14-year-old boy, and it is
reasonable to assume that Trevor had a better chance of finding an adoptive placement.
The fact that John cared for Trevor when the boy had pneumonia in 2000 does not
change this calculus; the superior court's distinction between Trevor and Adam was not
clear error.
44 181 P.3d 177, 185 (Alaska 2008).
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the child reached 18.45 Similarly, in G.C. v. State, Department of Health & Social
Services, Division of Family & Youth Services, we affirmed the termination of a father's
parental rights although his child was not in pre-adoptive placement at the time.46
Here, OCS's lack of success in finding pre-adoptive placements for Trevor
and Mathilda is troubling, but it does not follow that it is in the children's best interests
for John to retain his parental rights. The superior court found that the children were
young, had already been in state custody for four years, and had "an urgent need for
permanency." The court further noted that Jane had moved in with another man and was
unwilling to house the children, while John would be unable to provide a home for most
of them until at least 2019.47 These findings are amply supported by the record:
(1) John's incarceration and probation will extend until 2019; (2) at the time of trial, Jane
was living with a sex offender who did not want Jane's children to reside with them; and
(3) Jane had stopped attending visitation with the younger children by the end of trial.
Although OCS had not identified pre-adoptive placements for Trevor and
Mathilda by the time of trial, the termination of John's and Jane's parental rights triggered
the agency's legal duty to find adoptive placements for the children.48 It was not clear
error for the superior court to find that it was in the children's best interests to have the
opportunity to be adopted rather than live in temporary custody for, at a minimum, several
more years.
45 102 P.3d 932, 937 (Alaska 2004).
46 67 P.3d 648, 655 (Alaska 2003).
47 The superior court's finding in this regard was inaccurate; John would
technically be permitted to house Mathilda starting in 2017. See supra note 15. But this
small error has no bearing on the overall accuracy of the trial court's findings.
48 AS 47.10.088(i).
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3. The superior court did not commit clear error by failing to
explicitly consider John's desire to continue his relationship with
the children.
John also contends that the superior court "failed to consider John's strong
determination to continue in his relationship with all his children, which it was obligated
to do." As proof of his determination, John notes that he spoke with his children on the
telephone frequently during his incarceration. In its best interests analysis, the superior
court did not specifically mention John's desire to maintain a relationship with his
children.
We can find no support in the law for the proposition that a superior court
is obligated to enter findings articulating its consideration of a parent's desire to continue
parenting his children as a component of its best interests analysis. One of the statutory
factors relevant to the best interests determination is "the amount of effort by the parent
to remedy the conduct or the conditions in the home";49 John apparently relies on this
factor for his assertion that the superior court "was obligated" to consider his telephone
communications with the children.50 But the factors outlined in AS 47.10.088 are non-
exclusive, and there is no requirement that superior courts "accord a particular weight to
any given factor."51 All of the statutory factors - including the amount of remedial effort
expended by John - indicate that the termination of John's parental rights was in the best
49 AS 47.10.088(b)(2).
50 John cites Barbara P. v. State, 234 P.3d 1245, 1263-64 (Alaska 2010) for
his assertion that the superior court failed to comply with a legal obligation. Barbara P.
is actually adverse authority for John. In that case, we held that despite the parents'
professed "determination to change," the superior court did not err in finding that
termination was in the children's best interests because it was entitled to give weight to
the children's need for permanency. Id.
51 Id. at 1263.
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interests of his children. Further, the `record makes it clear that the superior court was
well aware of John's desire to parent his children; John testified at length in opposition
to OCS's petition.
4. The superior court was not required to consider ICWA's
placement preferences as a component of its best interests
analysis.
John further argues that the superior court erred in its best interests analysis
by failing to account for ICWA's placement preferences. He asserts that the superior
court:
did not address the children's need for sibling contact, as well
as contact with their extended family and tribe, as such,
ignoring ICWA's very important overarching best interests
standard that the children should remain either with their
extended family or inside the tribe. Given the impossibility of
finding any adoptive home that could keep the children
together, maintaining their identity and connection through
their father is very important and should have been given
thought and weight in the analysis.
In support of this argument, John identifies an Arizona case stating that "[ICWA] is based
on the fundamental assumption that it is in the Indian child's best interests that its
relationship to the tribe be protected."52 He argues that ICWA is therefore "inarguably
part of the best interests analysis of any Alaska [N]ative child."
OCS argues that John fails to support the foregoing argument with "any
legal authority or provision . . . most likely because there isn't any." OCS argues that
"ICWA does not . . . require a determination that termination is in the child's best interest
- a requirement established solely under state law." OCS concludes by citing to a
memorandum opinion of this court for the proposition that ICWA's placement
52 Matter of Appeal in Pima Cnty. Juvenile Action No. S-903, 635 P.2d 187,
189 (Ariz. App. 1981).
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preferences are "irrelevant to the question, under state law, of whether termination of
parental rights is in a child's best interests."
InJacob W. v. State (an unpublished memorandum opinion), we rejected the
appellant's argument that the superior court erred by failing to consider ICWA's
placement preferences as a component of its best interests analysis. We wrote:
In placing an Indian child in foster care or an adoptive home,
ICWA requires that preference be given . . . to members of the
child's extended family or to someone otherwise affiliated
with the child's Indian tribe. But this specifically applies to
placement of an Indian child; nothing in ICWA requires
consideration of placement options in determining whether to
terminate parental rights. The relevant issue was whether . . .
parental rights should be terminated in the best interests of the
children, not what would happen to the children after
termination of those parental rights.[53]
In Lucy J. v. State, Department of Health & Social Services, Office of
Children's Services, we held that ICWA's placement preferences are not a part of the best
interests inquiry in a termination proceeding.54 We see no reason to disregard this
precedent here.55
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court's order
terminating John's parental rights to Trevor, Mathilda, and Nin.
53 Jacob W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 2008 WL 5101809 at *9 (Alaska, Dec. 3, 2008).
54 244 P.3d 1099, 1120 (Alaska 2010).
55 The superior court also observed that OCS did try to find relative
placements. In its active efforts findings, the court determined that OCS "made excellent
efforts to locate relative placements and continues to do so." This finding was supported
by the record.
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