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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ronald H. v. State of Alaska, DHSS, OCS (7/14/2021) sp-7541
Notice: This opinion is subject to correction before publication in the P ACIFIC 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@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
RONALD H., )
) Supreme Court No. S-17890
Appellant, )
) Superior Court Nos. 3PA-17-00069/
v. ) 00070 CN
)
STATE OF ALASKA, DEPARTMENT
) O P I N I O N
OF HEALTH & SOCIAL SERVICES, )
OFFICE OF CHILDREN'S SERVICES, ) No.7541 - July 14, 2021
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Jay Hochberg, Anchorage, for Appellant.
Mary Ann Lundquist, Senior Assistant Attorney General,
Fairbanks, and Treg R. Taylor, Attorney General, Juneau, for
Appellee. Rachel Levitt, Assistant Public Advocate, Palmer,
and James Stinson, Public Advocate, Anchorage, for
Guardian Ad Litem.
Before: Winfree, Maassen, Carney, and Borghesan, Justices.
[Bolger, Chief Justice, not participating.]
BORGHESAN, Justice.
I. INTRODUCTION
The superior court terminated a father's parental rights to his two children
after finding them children in need of aid because of their father's domestic violence and
----------------------- Page 2-----------------------
aggressive behavior. The children are Indian children under the Indian Child Welfare
Act (ICWA). Therefore the Office of Children's Services (OCS) was required to make
active efforts to provide remedial services and rehabilitative programs designed to
1 At the termination trial, the superior court found
prevent the breakup of the family.
clear and convincing evidence that OCS made active efforts but that these efforts proved
unsuccessful.
The father appeals, arguing only that the superior court's active efforts
finding was made in error. We conclude that the superior court did not err in finding that
active efforts were made and affirm the termination order.
II. FACTS AND PROCEEDINGS
A. Removal And Case Plan Progress Prior To June 2017
Ronald H. and Angela A. began their relationship in January 2014.2 The
couple had two children together: Alice, born in January 2015, and Harold, born in
April 2016.3 Both Alice and Harold are "Indian Children" for purposes of ICWA.4
1 See 25 U.S.C. § 1912(d) (2018), declared unconstitutional by Brackeen v.
Haaland, 994 F.3d 249 (5th Cir. 2021); but see id. at 445 (Costa, J., concurring in part
and dissenting in part) (citing ASARCO Inc. v. Kadish , 490 U.S. 605, 617 (1989) (noting
that state courts are not required to follow a federal circuit court's interpretation of
federal law)).
2 Many of the facts in this opinion are drawn from our decision in Ronald's
previous appeal of the adjudication order in this case. See Ronald H. v. State, Dep't of
Health & Soc. Servs., Office of Children's Servs., No. S-16725, 2018 WL 1611648, at
*1 (Alaska Mar. 28, 2018). We use the same pseudonyms in this opinion to protect the
family's privacy.
3 Id.
4 25 U.S.C. §§ 1901-1963. ICWA establishes "minimum Federal standards
for the removal of Indian children from their families and [for] the placement of such
(continued...)
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Angela also has a third child from another relationship, Andrew, who was born in
5
January 2007.
Ronald and Angela are no longer in a relationship together and do not
plan to reunite.
In January 2016 Ronald and Angela had a heated argument. Following the
argument, Angela told Andrew to shut off the television while Ronald was watching it.
When Andrew did so, Ronald grabbed him, picked himup by his shirt, and slammed him
to the floor. Angela, who was holding Alice in her lap, captured the incident on video.
Ronald was arrested and ultimately convicted of assault in the fourth degree.
OCS received a protective services report following Ronald's arrest.
Because Ronald was jailed following the assault and was not expected to return to the
home, OCS did not immediately take custody of the children; but after OCS workers saw
6 Andrew
Angela's video, they concluded that the children should be taken into custody.
was removed from the home that day; Alice and the newborn Harold were taken into
7 At a temporary custody hearing several days later, the
custody early the next morning.
superior court found probable cause to believe the children were in need of aid and
concluded it would be contrary to their welfare to return to the family home. The
4 (...continued)
children in foster or adoptive homes which will reflect the unique values of Indian
culture." Id . § 1902. An "Indian child" is "any unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of an Indian tribe." Id .
§ 1903(4).
5 Ronald H., 2018 WL 1611648 at *1.
6 Id.
7 Id.
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superior court encouraged OCS to find a way for Angela to have contact with the
children but stated that Ronald should have "very limited contact" with them. 8
OCS developed a case plan for both parents in September 2016; it required
Ronald to participate in a behavioral health assessment, attend parenting classes, and
participate in a batterer's intervention program.9 The plan also required Angela to
receive a mental health assessment, attend a domestic violence support group, participate
in parenting classes, and work with a tribal social services program.10 The plan indicated
that OCS would support Ronald and Angela by providing financial assistance for
assessments, providing referrals and transportation to recommended treatments,
communicating with tribal family services, and supervising visitation.11 Ronald and
Angela made progress on the case plan at first, but over time their relationship with OCS
12 As a result, OCS
began to deteriorate and their progress on the case plan slowed.
concluded that Alice and Harold would be at risk if they were returned to their parents'
custody.13
B. Adjudication Trial, Disposition Hearing, And Prior Appeal
Athree-dayadjudication trialcommencedin September 2016.14 In January
2017 the superior court issued an order that Andrew, Alice, and Harold were children in
8 Id.
9 See id. at *2.
10 Id.
11 Id.
12 Id.
13 Id.
14 Id.
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----------------------- Page 5-----------------------
need of aid because Ronald had assaulted Andrew, there was a history of domestic
violence between Ronald and Angela, and domestic violence had occurred in front of the
15
children. Ronald and Angela appealed the adjudication orders pertaining to Alice and
Harold, arguing that the superior court erred by finding that Alice and Harold were
children in need of aid and by finding that OCS had made active efforts in providing
16
remedial services to prevent the breakup of the family.
We rejected those arguments and affirmed the superior court on all
17
grounds.
Ronald and Angela's argument that OCS did not make active efforts was
18
based on a series of alleged delays. They also argued that OCS did not adequately
assist Ronald with his psychological evaluation, provide him with alternative
programming for the batterer's intervention program, or address his concerns about the
19
We concluded that because "OCS's efforts
time and expense of attending the program.
[were] analogous to efforts that have been found to justify active efforts findings in past
20
cases," they amounted to active efforts under ICWA.
We also noted that Ronald did not participate in several of the programs
recommended to him by OCS, including further psychological evaluation and the
15 Id.
16 Id. at *3.
17 See id. at *8.
18 Id. at *5.
19 Id. at *6.
20 Id.
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21
batterer's intervention program. And we observed that "[r]ather than working with
OCS, Ronald yelled and swore at OCS workers when asked to adhere to visitation rules
22 Because "a parent's
and intimated that he wished to commit violence against them."
demonstrated lack of willingness to participate in treatment may be considered" when
assessing OCS's efforts,23 Ronald's "unwillingness to fully participate in his case plan
and his hostility towards OCS" supported the superior court's ruling that OCS's efforts
were sufficiently active.24
C. Efforts Made By OCS Between January 2017 And June 2019
1. Psychiatric evaluation with Dr. Grace Long
Ronald was referred by OCS to Dr. Grace Long for a psychiatric
evaluation, which she completed in January 2018. Dr. Long found that Ronald's
cognition fell in the borderline range and that he had difficulties with reading. Her
diagnostic impressions included "an adjustment disorder with mixed disturbance of
emotions and conduct," major depression, and an unspecified personality disorder. Dr.
Long recommended that Ronald receive therapeutic counseling, anger management
treatment, parenting education, case management, and domestic violence education and
intervention. Dr.Long also recommended that Ronald get another psychiatricevaluation
for possible use of medication to address the symptoms of depression, anxiety, cognitive
rumination, and disturbed sleep patterns. Dr. Long later noted in her trial testimony that
21 Id.
22 Id.
23 Id. (quoting Philip J. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 314 P.3d 518, 527 (Alaska 2013)).
24 Id.
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Ronald needed to address his psychological turmoil and anger to prevent him activating
fear in Alice and Harold and to allow him to put their needs before his own.
2. Services targeted at domestic violence and mental health
In February 2018 Ronald was referred to Alaska Family Services for a
batterer's intervention program. He began his classes in May under a volunteer work-to-
pay program but was discharged from the program because a court entered a new
domestic violence protective order (DVPO) against him; he also failed to maintain
contact with the program. Ronald never finished the batterer's intervention program.
OCS assigned a new caseworker to Ronald in December 2018. That
caseworker developed another case plan for Ronald in January 2019 to address OCS's
mental health and behavior concerns. The case plan included several goals with discrete
tasks for Ronald. That caseworker testified that she went over the recommendations
from Dr. Long's neuropsychological evaluation with Ronald in person (some of which
she incorporated into his new case plan) and discussed how she and Ronald could work
together to make sure Ronald could complete everything in the plan. She instructed him
to obtain individual counseling and gave him a contact list of providers that accepted
Medicaid. She testified that she tried to set up appointments for Ronald with several of
the providers but was barred from doing so due to HIPAA restrictions. She explained
that Ronald first had to choose a provider, then sign a release of information for that
provider, and only then could OCS make a referral and proffer collateral information to
the provider. She testified that Ronald did not tell her which provider he wanted to
receive services from, and he never executed a release of information for any provider
so OCS could set up the appointment.
The caseworker testified at trial that Ronald failed to call the providers and
instead complained to her about the distance to a provider or that a provider's phone
number was incorrect. She made sure all the numbers were correct and tried to help
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----------------------- Page 8-----------------------
Ronald arrange services. But Ronald did not sign up for services at the time; when he
finally did, he got on the waitlist for services at Providence, which was six to nine
months long.
The case plan required Ronald to take domestic violence classes, meet
weekly with a parent navigator to discuss coping and stress skills at Alaska Youth &
Family Network (AYFN); and take an assessment at Fathers Insync, a social services
organizationfor fathers, then follow all recommendations. His caseworker sentareferral
to Fathers Insync and paid for an assessment. The assessment at Fathers Insync
recommended the batterer's intervention program, which Ronald started but was
eventually asked to leave due to his disruptive behavior and lack of payment for services.
His caseworker then referred him to Alaska Family Services (AFS), but Ronald refused
to pay the co-pay and demanded that OCS pay for it instead, which according to his
caseworker, OCS was not authorized to do. Ronald was also then referred to AYFN for
domestic violence classes but was discharged for being disruptive and not taking
feedback from AYFN's parent navigator.
Ronald's caseworker testified that she spent more time with Ronald than
any other parent on her caseload. According to his caseworker, Ronald would come to
the OCS offices at times without an appointment, demanding to see the caseworker. He
would contact the caseworker via phone or email up to 15 times per day; as a result, she
tried to meet with him once per week. Because of the volume of his emails, his
caseworker directed them into their own folder, and she would respond to them at the
end of the day. She testified that she found written communication with Ronald more
effective because she could ensure that he received all of the information.
In October 2019 a new caseworker took over Ronald's case. The second
caseworker testified that he communicated with Ronald via email about his case plan.
According to the second caseworker, Ronald did not start mental health counseling until
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----------------------- Page 9-----------------------
the end of 2019, about six months after the termination petition had been filed and a
month before the trial started. Ronald had not started his domestic violence or anger
management classes by February 2020.
3. Visitations at AYFN and OCS
In 2018 Ronald had visitation twice a week at AYFN in conjunction with
parent navigation services, which provided Ronald with parent coaching and modeling.
In October AYFN cancelled Ronald's visitation because Angela got a DVPO against
him. Then in April 2019 a new visitation supervisor, Unified Families, notified OCS that
it would no longer be providing visitation to Ronald because of his behavior during the
visits.
Because AFS and AYFN had already refused to offer Ronald visitation, the
25 OCS workers testified that when visits
only option for his visits was at the OCS office.
were moved to the OCS office, however, Ronald continued his disruptive behavior.
During one visit, Ronald took pictures of his children holding signs saying they had been
kidnapped, which he then posted on social media. Ronald often called 911 while at
OCS, causing the entire office to go on lockdown and ending other families' visitation.
At one point, because other families did not feel safe, OCS had to stop all other families'
visitations during Ronald's visits. OCS supervisors often had to get involved when
Ronald was at the OCS office for visitation. For example, Ronald once tried to enter a
locked area and backed an OCS employee into a corner, prompting security to intervene
to de-escalate the situation. In another supervised visit, rather than engaging with the
25 At some point AYFN reinstated Ronald's visitation privileges, but only on
the condition that his sessions take place outside of business hours, when no other clients
were present, and that OCS supervise them. OCS decided to continue visitation at its
office instead.
-9- 7541
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children, Ronald took pictures of his caseworker, made voice recordings, refused to
follow directions, and argued with her.
In an attempt to avoid Ronald's disruptions at OCS's office, OCS
eventually used video visitation for Ronald's family. But when OCS called Ronald for
visits, he sometimes did not answer. By the end of the trial Ronald's visitation with
Alice and Harold was limited to letters because OCS concluded that Ronald was unable
to regulate his behavior in his children's presence.
4. Alice's sexual abuse reports
While visiting with Ronald on May 9, 2018, Alice told him that she had
taken all her clothes off while "playing tag in the woods with the boys," including her
half-brother Andrew. The visitation supervisor from United Families noted this report
in the visitation notes and emailed them to an OCS worker that day. Ronald and OCS
were aware of Andrew's prior instances of sexually inappropriate behavior. About a
week later, Alice disclosed to Ronald that she had "been to the woods again." This was
recorded again in the visitation notes and emailed to an OCS worker. Ronald expressed
anger that OCS had not taken Alice to the doctor; he also called law enforcement twice
that day to report the sexual abuse of his daughter. Visitation notes indicate that Alice
was scheduled for an appointment at the Children's Crisis Center the next day, but the
record does not indicate that this interview occurred.
Ronald's caseworker encouraged him to "call intake and make a service
report," but Ronald said "he couldn't do that because he makes too many reports and
they don't believe him." His caseworker testified that she interviewed Alice in response
to these disclosures. Alice did not disclose any abuse to the caseworker, and the
caseworker found no evidence of abuse or maltreatment. The caseworker also notified
the guardian ad litem about the allegations.
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A few months later Ronald's family navigator at AYFN filed a report with
OCS about the lack of supervision at the foster parent's home. She stated that Alice was
reportedly exhibiting unusual and sexualized behavior. She told Ronald to make a new
report of harm to OCS and let him know she would also contact OCS herself to share her
own concerns.
Some time after these allegations were made, the Department of Health and
Social Services' foster care licensing division conducted an official investigation of the
foster home and later referred the allegations to law enforcement. Because the licensing
26 Ronald's OCS workers received only a
investigations are confidential by statute,
summary of the investigation. The summaries show that forensic interviews were
conducted, but the licensing division did not recommend that the children be removed
from the foster home.
Ronald continued to ask OCS to address his concerns about Alice
experiencing sexual abuse. In July 2019 OCS moved the children based on its "concerns
in the [foster] home." The new foster parent asked that Andrew be moved out of the
house immediately due to "challenging behaviors." In October 2019, after Alice told her
new foster parent that she had been sexually abused by Andrew and another boy, OCS
reported the abuse to law enforcement. OCS obtained a forensic examination the
following month. In this examination Alice alleged that her brother Andrew touched her
vagina and buttocks underneath her clothing on multiple occasions.
D. The Superior Court's Findings And Termination Of Parental Rights
In June 2019 OCS petitioned the superior court to terminate Ronald and
Angela's parental rights to Alice, Harold, and Andrew. After a termination trial that was
26 See AS 47.32.180; AS 47.32.010(b)(5).
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27
held in February and June 2020, the superior court terminated Ronald's parental rights.
The court found proof beyond a reasonable doubt that returning the children to Ronald
would likely result in serious emotional and physical damage, based on the testimony of
Dr. Long and another expert witness. The court also found that OCS proved by clear and
convincing evidence that Alice and Harold were children in need of aid under
AS 47.10.011(2) (incarcerated parent), (8)(A) (mental injury), and (8)(B)(iii) (repeated
exposure to domestic violence). The superior court found that termination of Ronald's
parental rights was in the best interests of Alice and Harold, as Ronald's "aggressive and
combative actions show he has not made the necessary behavioral changes that would
enable him to safely parent" and that Alice and Harold, after spending "the majority of
their lives" in OCS custody, "should not have to wait any longer to obtain permanency."
Ronald argued that OCS had failed to make active efforts to prevent the
breakup of his family. Specifically, he argued that OCS filed a false DVPO petition to
prevent him from completing the required batterer's intervention program. He also
argued that case workers first ignored his reports that Alice was abused in her foster
home and then retaliated against him for his repeated prompts to investigate. He also
argued that OCS gave him no support in completing his case plan.
The superior court disagreed. It found that OCS "provided [Ronald] with
written case plans based on [its] concerns regarding domestic violence," including one
that was created in January 2019 following Ronald's psychological evaluation with Dr.
Long. In the superior court's view, that case plan required Ronald to complete five
discrete steps; it found that despite OCS's efforts Ronald had not satisfied most of them
by the time of the termination hearing.
27 A separate trial led to the termination of Angela's parental rights. It was
held separately to enable Andrew to participate "without fear or intimidation" from
Ronald.
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The first step required Ronald to "demonstrate financial independence
through obtaining housing and employment." But the superior court found that because
Ronald refused to share the details of his housing and employment, OCS was unable to
verify whether the step had actually been completed. The second step required Ronald
to undergo a mental health assessment. But the superior court found he had refused to
pursue those services that OCS had identified for himuntil shortly before the termination
hearing.
The superior court found that the additional steps, which involved
participation in remedial programs, were hindered by Ronald's behavior while attending
those programs. The third step required Ronald to participate in parenting programs
provided by Fathers Insync; but the superior court found that Ronald did not complete
the program because he was being disruptive and failed to pay for the program. The
fourth step required Ronald to undergo an assessment for a batterer's intervention
program, which OCS paid for, and undertake any treatment recommended by the
assessment. The superior court found that Ronald completed the assessment with AFS,
but was discharged from the recommended batterer's intervention program due to
months of disengagement with the program and because of a new DVPO issued against
him. The superior court found that OCS arranged for Ronald to attend another batterer's
interventionprogramthrough Recovery Connection in December2019;however,Ronald
had not attended those classes by the time of the termination hearing. The fifth step
involved meeting with a peer navigator through AYFN. But the superior court found
that Ronald was ultimately discharged from AYFN for being disruptive.
Similarly, the superior court found that OCS "made many efforts to
facilitate visitation" for Ronald with his children; however, the court noted that Ronald
would miss visits frequently, make other families and staff feel unsafe, refuse to follow
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directions, discuss his parental rights case with his children, and even cause the OCS
building to be locked down.
The superior court found Ronald's arguments that OCS blocked him from
completing his case plan to be mostly unpersuasive and not supported by the evidence.
The one exception was Ronald's argument that OCS failed to timely investigate the
safety of Alice's placement in 2018 after Ronald alleged that Alice had told him about
sexual abuse in her foster home. The court concluded that "[i]t [did] not appear . . . that
[OCS] took [Ronald's] reports concerning [Alice] seriously." Yet the court concluded
that "this failure does not defeat this [c]ourt's finding that, in light of the totality of
evidence, [OCS] made active efforts to effect reunification."
Ronald appeals the termination order on the sole ground that OCS failed
to make active efforts towards reunification.
III. STANDARDS OF REVIEW
Whether the evidence in the record supports the superior court's active-
28
efforts ruling is a mixed question of law and fact.
"We review factual findings for clear
error, reversing only if, after 'review of the entire record' . . . we are left 'with a definite
29 Whether the superior court's
and firm conviction that a mistake has been made.' "
factual findings in a termination of parental rights action satisfy ICWA is a question of
law to which we apply our independent judgment.30
28 See Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 212 P.3d 756, 761 (Alaska 2009).
29 Id. (quoting Audrey H. v. State, Office of Children's Servs. , 188 P.3d 668,
672 (Alaska 2008)).
30 Id.
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IV. DISCUSSION
A. ICWA Requires OCS To Make "Active Efforts" To Prevent The
Breakup of An Indian Family.
"Before terminating parental rights to an Indian child, a court must find that
active efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts have proved
31
unsuccessful."
We have distinguished "active efforts" from merely passive efforts:
Passive efforts are where a plan is drawn up and the client
must develop his or her own resources towards bringing it to
fruition. Active efforts . . . [are] where the state caseworker
takes the client through the steps of the plan rather than
requiring that the plan be performed on its own. For instance,
rather than requiring that a client find a job, acquire new
housing, and terminate a relationship with what is perceived
to be a boyfriend who is a bad influence, the Indian Child
Welfare Act would require that the caseworker help the client
develop job and parenting skills necessary to retain custody
[32]
of her child.
Yet we have also acknowledged that " 'no pat formula' exists for
distinguishing between active and passive efforts."33 Efforts must be evaluated on a
31 Caitlyn E. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 399 P.3d 646, 654 (Alaska 2017). This requirement applies even in situations
that involve the termination of a non-Indian parent's rights to an Indian child. C.J. v.
State, Dep't of Health & Soc. Servs. , 18 P.3d 1214, 1217 n.10 (Alaska 2001).
32 A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 261 (Alaska
RAIG J. DORSAY, THE INDIAN CHILD WELFARE ACT AND LAWS
1999) (quoting C
AFFECTING INDIAN JUVENILES MANUAL 157-58 (1984)).
33 Philip J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. ,
314 P.3d 518, 527 (Alaska 2013) (quoting A.A. , 982 P.2d at 261).
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----------------------- Page 16-----------------------
34
case-by-case basis, and OCS uses its discretion to tailor its efforts to the parents'
35
"individual capabilities."
When evaluating whether OCS has met its active efforts
burden, the superior court does not look at specific instances of conduct, but rather to
36 And the superior court may also consider "a
OCS's "involvement in its entirety."
parent's demonstrated lack of willingness to participate in treatment" when determining
whether OCS's efforts were sufficiently active.37 This is particularly relevant when
efforts become passive due to lack of cooperation from the parent or parents; we have
34 Id.
35 Lucy J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. ,
244 P.3d 1099, 1116 (Alaska 2010).
36 Dale H. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
235 P.3d 203, 213 (Alaska 2010) (quoting Maisy W. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008)); see also Maisy
W., 175 P.3d at 1269 (finding that OCS made active efforts when considering entirety
of its efforts from February 2004 until March 2007 even though it conceded that it had
failed to make active efforts for three months in 2005); E.A. v. State, Div. of Family &
Youth Servs., 46 P.3d 986, 990 (Alaska 2002) (finding DFYS's failure to make active
efforts in particular seven-month period was "insignificant in light of the extensive
remedial efforts the state [had otherwise] provided throughout its involvement" with the
family).
37 Philip J., 314 P.3d at 528 (quoting Maisy W., 175 P.3d at 1269) (upholding
finding that OCS was excused from making active efforts because mother repeatedly
declined to participate in treatment for mental health and alcohol counseling); see also
David S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 270 P.3d
767, 778 (Alaska 2012) ("[Father's] refusal to speak with [his case worker] . . .
undermines his argument that OCS should have arranged more than three [visitations]
. . . ."); Lucy J., 244 P.3d at 1117 (affirming superior court's active efforts finding
because mother did not complete steps in her case plan or attend meetings arranged by
OCS); A.A. , 982 P.2d at 262 (upholding finding of active efforts despite DFYS failing
to develop case plan because father was unwilling to engage in treatment).
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----------------------- Page 17-----------------------
excused "further active efforts once the parent expresses an unwillingness to
participate."38
B. OCS Made Active Efforts To Prevent The Breakup Of Ronald's
Family.
The children were removed from Ronald's custody due to his acts of
domestic violence and aggression. OCS identified numerous services targeted at these
issues and tried to help Ronald benefit from these services: a batterer's intervention
program, integrated mental health services, a peer navigator and wraparound services at
AYFN, and visitation with his children. Yet the superior court found that Ronald refused
to engage with some of these services and was discharged from others for being
disruptive and combative. Ronald largely ignores this problem and instead focuses on
things he believes OCS should have done differently or with greater effort: providing
services that were more culturally appropriate, doing more to help him obtain a
medication evaluation, and communicating with him orally due to his cognitive
challenges. Although OCS might have done more, Ronald does not convince us that it
failed to provide active efforts, particularly in light of his own conduct that made it
difficult for OCS to help him.
When OCS's efforts are viewed in their entirety, the evidence supports the
superior court's conclusion that OCS met its burden to make active efforts. OCS referred
Ronald to several domestic violence classes and batterer's intervention programs. It paid
for some assessments and helped him find new classes after he was discharged from the
first ones without finishing them. OCS also helped enroll Ronald in parenting programs
and referred him to several mental health providers; although OCS itself could not
38
Philip J., 314 P.3d at 528 (quoting Wilson W. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 185 P.3d 94, 102 (Alaska 2008)).
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----------------------- Page 18-----------------------
directly sign him up, case workers provided Ronald the providers' contact information
so he could contact them directly.
The record also shows that Ronald has, on the whole, been either unwilling
or uncooperative in undertaking the tasks set forth by OCS and his case plan. The
superior court found that Ronald refused to pursue mental health services until shortly
before trial, was discharged from various services due to his own conduct, and thwarted
efforts to provide visitation with his children. None of these findings is clearly
erroneous. Ronald's caseworker testified that Ronald failed to call providers to receive
mental health counseling. Testimony also indicated that Ronald was discharged from
completing his weekly support groups and batterer's intervention programs for being too
disruptive and failing to pay for the services. He was so disruptive and verbally
aggressive during visitation with his children that OCS had to rearrange other parents'
scheduled visitations to ensure their safety. He also took pictures during visitation of his
children holding signs saying they had been kidnapped, which he then posted on social
media.
As previously noted, we consider a parent's demonstrated lack of
39
willingness or cooperation when determining whether OCS has made active efforts.
We have excused "further active efforts once the parent expresses an unwillingness to
participate."40 And "a parent's lack of cooperation may excuse minor faults in OCS's
efforts."41 Indeed, in Ronald's previous adjudication appeal we ruled that his
39 See id. (willingness); Pravat P. v. State, Dep't of Health & Soc. Servs.,
Office of Children's Servs., 249 P.3d 264, 272 (Alaska 2011) (cooperation).
40 Philip J., 314 P.3d at 528 (quoting Wilson W., 185 P.3d 94, 102 (Alaska
2008)).
41 Pravat P., 249 P.3d at 272.
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"unwillingness to fully participate in his caseplan and hishostility toward OCS" justified
42 43
the level of efforts he had received.
The same is true here.
1. OCS's efforts were not inconsistent with the prevailing social
and cultural conditions in the children's tribe.
Ronald argues that OCS presented no evidence of any attempts to maintain
or reestablish the children's connection to their Native culture, citing the 2016 ICWA
regulations by the federal Bureau of Indian Affairs (BIA). But neither ICWA nor the
BIA regulations expressly require OCS to connect Indian children with their Native
culture. Rather, the statute and regulations require OCS to make active efforts to prevent
44
the breakup of the family by providing "remedial services and rehabilitative programs"
"in a manner consistent with the prevailing social and cultural conditions" of the Tribe
and "in partnership with the Indian child and Indian child's parents, extended family
45
members, Indian custodians, and Tribe" "[t]o the maximum extent possible."
Moreover, the 2016 BIA guidelines clarify that ICWA gives state agencies
like OCS significant discretion to determine how best to provide these efforts in light of
42 Ronald H. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., No. S-16725, 2018 WL 1611648, at *6 (Alaska Mar. 28, 2018).
43 Ronald argues that the superior court's active efforts finding was tainted by
its supposedly erroneous finding that OCS timely began the process under the Interstate
Compact on the Placement of Children (ICPC) to place the children with their paternal
grandmother (Ronald's mother) in Missouri. But because the superior court did not rely
on this finding about the ICPC process in its active efforts analysis, we reject this
argument.
44 25 U.S.C. § 1912(d).
45 25 C.F.R. § 23.2 (2021).
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----------------------- Page 20-----------------------
46
the facts of the particular case. We have consistently observed that " 'no pat formula'
47
exists for distinguishing between active and passive efforts."
Both the text of the 2016
regulations and the implementation guidelines provide examples of active efforts under
48 Rather,
ICWA; however, these specific actions (or others) are not expressly required.
"[a]ctive efforts are to be tailored to the facts and circumstances of the case."49
OCS worked with both Ronald and Angela, the children's Tribe, and
extended family members with whom it placed the children. OCS has involved the
children's Tribein case plan meetings with Angela and consulted the Tribeabout ICWA-
compliant placements. OCS also placed the children with a foster parent who was an
extended familymember and anICWA-preferred placement, andhelpedthefoster parent
meet the children's needs (e.g., well-child exams, dental care, clothing vouchers). OCS
also helped Angela access services through Southcentral Foundation, an Alaska Native-
46 See BUREAU OF INDIAN AFFAIRS,U.S.D EP 'T OF THE INTERIOR,G UIDELINES
IMPLEMENTING THE INDIAN CHILD WELFARE ACT § E.4 (2016) ("The minimum
FOR
actions required to meet the 'active efforts' threshold will depend on unique
circumstances of the case. It is recommended that the State agency determine which
active efforts will best address the specific issues facing the family and tailor those
efforts to help keep the family together. This will help active efforts to respond to the
unique facts and circumstances of the case.").
47 Philip J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
314 P.3d 518, 527 (Alaska 2013) (quoting A.A. v. State, Dep't of Family &Youth Servs. ,
982 P.2d 256, 261 (Alaska 1999)).
48 See BUREAU OF INDIAN AFFAIRS, supra note 46, § E.4 ("The examples of
active efforts provided in the ICWA regulations reflect best practices in the field of
Indian child welfare, but are not meant to be an exhaustive list."); see also 25 C.F.R.
§ 23.2.
49 25 C.F.R. § 23.2.
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----------------------- Page 21-----------------------
50
owned healthcare provider. These actions are examples of how OCS took "affirmative,
proactive, thorough, and timely efforts" to "provide services and programs to the
family."51
OCS also referred Ronald to a number of services to help address Ronald's
aggression and domestic violence, including batterer's intervention programs and
wraparound services. But Ronald was unable to complete many of the services due to
his own conduct. Ronald does not explain why these services were not "consistent with
the prevailing social and cultural conditions" or way of life of the children's Tribe, nor
does he suggest there were more culturally appropriate services available that OCSfailed
52 We therefore reject Ronald's argument that OCS failed to comply with
to provide him.
its obligations under the BIA regulations.
2. OCSmadeactiveefforts by helping Ronaldaccessrehabilitative
services and a psychological evaluation for medication.
Ronald argues that OCS did not use active efforts to help himobtain mental
health services. His caseworker testified that she had given Ronald a list of providers;
Ronald had to choose one and sign a release of information for that provider for OCS to
make a referral and send collateral information to that provider. Ronald argues that OCS
50 See Josh L. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 276 P.3d 457, 463-64 (Alaska 2012) (citing Dashiell R. v. State, Dep't of Health
& Soc. Servs, Office of Children's Servs. , 222 P.3d 841, 850 (Alaska 2009)) (observing
that efforts made toward reunification on behalf ofone parent are considered to be efforts
towards other parent as well).
51 BUREAU OF INDIAN AFFAIRS, supra note 46, § E.4.
52 See Addy S. v. Dep't of Health & Soc. Servs., Office of Children's Servs. ,
No. S-17257, 2019 WL 3216807, at *6 (Alaska July 17, 2019) (noting that ICWA
expert's testimony did not clearly establish that alternative programs beneficial to parent
were available and appropriate for parent's situation).
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----------------------- Page 22-----------------------
could have done more to "provide [him] with release of information forms so that she
could assist him." Even if OCS had obtained blank copies of HIPAA release forms from
each provider for Ronald to sign, Ronald would still have had to pick a provider to see.
His caseworker testified that she explained this to Ronald, and the superior court
expressly found that Ronald nevertheless refused to seek treatment until not long before
the termination trial began. This finding is supported by Ronald's caseworkers'
testimony and is not clearly erroneous. Ronald's unwillingness to seek treatment was
the roadblock to his obtaining that treatment.
Ronald's argument that OCS failed to use active efforts to obtain a
psychiatric evaluation for medication fails for the same reason. His second caseworker
testified that he had referred Ronald to several local providers who could perform
psychiatric evaluations or medication management. Because the superior court found
that Ronald had until recently refused to pursue these referrals, we cannot say that the
lack of medication evaluation reflects a failure of OCS efforts.
Ronald also argues that "[l]ack of funding was an obstacle to Ronald
completing his treatment,"particularlyfor twobatterer's interventionprogramsthatwere
"central to the rehabilitative needs of the case." He argues that OCS "did not attempt to
contact programs to assist him in finances," nor did it "attempt[] to contact the [T]ribe
to learn whether tribal funds might be available." This is not entirely accurate: OCS did
pay for at least two assessments for Ronald. But regardless, Ronald was not prevented
from obtaining services or discharged from them due solely to funding issues. As OCS
points out, Ronald was ejected from the batterer's intervention program because a new
domestic violence protective order had been issued against him. It was ultimately
Ronald's own behavior, rather than any passive efforts on OCS's part, that prevented
him from receiving the services he needed to reunify his family.
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----------------------- Page 23-----------------------
3. OCS's alleged failure to engage with Ronald via oral
communication was not a lack of active efforts.
Ronald argues that OCS failed to exercise active efforts when it did not
communicate with him orally and instead opted to use written communication despite
Dr. Long's finding that Ronald had difficulty with reading. Ronald also argues that OCS
violated the Americans with Disabilities Act (ADA) when it failed to communicate with
him verbally. Title II of the ADA provides that "no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
53
discrimination by any such entity."
We have observed that "whether reunification
services reasonably accommodated a parent's disability is already included within the
question [of] whether active or reasonable efforts were made to reunite the family,"
54
making "an independent analysis under the ADA . . . unnecessary."
Ronald's argument ignores a major problem: although OCS tried to
communicate orally with Ronald, his behavior made it largely impossible to do so.
Ronald's first caseworker had frequently interacted with Ronald in person and over the
phone, but these conversations were often difficult and unproductive because of the
"power struggles" and "constant redirection, trying to keep [Ronald] on topic." Ronald
would "fixate on past OCS workers, past things [the current caseworker] had no control
of." Ronald would call his caseworker up to 15 times per day, which made it difficult
for her to handle her case load, and "belittle" her. His caseworker therefore used written
53 42 U.S.C. § 12132 (2018).
54 Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
244 P.3d 1099, 1116 (Alaska 2010); see id. (concluding that if OCS "fails to take into
account the parents' limitations or disabilities and make any reasonable accommodations,
then it cannot be found that reasonable efforts were made to reunite the family" (quoting
In re Terry, 610 N.W.2d 563, 570 (Mich. App. 2000))).
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----------------------- Page 24-----------------------
communication to give Ronald the information he needed. It was ultimately Ronald's
own conduct that made it impossible for OCS to communicate with him in a way that
accommodated his difficulty with reading. Therefore, OCS did not fail to make active
efforts or violate the ADA when it communicated with him in writing. 55
C. OCS's Delay In Investigating Sexual Abuse Of Ronald's Daughter
While In Foster Care Did Not Negate OCS's Efforts To Reunify The
Family.
The superior court found that "[i]t [did] not appear . . . that [OCS] took
[Ronald's] reports concerning [Alice] seriously." The record shows that Alice told
Ronald during two visits in May 2018 that she took her clothes off to "play[] tag in the
woods with the boys." After this report was brought to Ronald's caseworker's attention,
the caseworker told Ronald to report the allegation to OCS intake. The caseworker also
interviewed Alice (who did not disclose abuse to the caseworker) and informed the
guardian ad litem. Although the record indicates that Alice may have been scheduled for
a forensic interview, it does not indicate that an interview took place at that time. Later
on, OCS referred the allegations to the Department of Health and Social Services'
licensing division for investigation. Then in July 2019 OCS moved the children out of
their foster home due to safety concerns; it is not clear from the record whether this was
prompted by the results of the licensing investigation or was even related to the sexual
abuse allegations. It was not until October 2019, when Alice told her new foster parent
that she had been sexually abused by her older brother and another boy, that OCS
reported the abuse to law enforcement and obtained a forensic interview, in which Alice
disclosed to investigators that her brother had touched her genitals and buttocks over a
year earlier.
55 Id.
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----------------------- Page 25-----------------------
It is deeply disturbing that Alice may have been sexually abused by her
brother while in foster care. And we agree with the superior court that the record
suggests OCS did not use best practices in investigating the reports of abuse when they
first surfaced: Alice should have had a forensic interview with trained medical
professionals or investigators, rather than an interview with Ronald's caseworker, when
OCS first learned of the possible abuse. OCS's apparent failure to investigate these
allegations as vigorously and effectively aspossible understandably caused Ronald great
anguish and increased his anger towards OCS.
If OCS neglects its duty to keep the children in its custody safe, it is
conceivable that the fallout could undermine OCS's working relationship with theparent
to such a degree as to negate other efforts OCS made to assist the parent. In such a
situation, we might well find that OCS's failure to keep the child safe amounted to a
failure of active efforts to reunify the family, absent special efforts to repair trust, address
trauma, and put the parent back on track.
But we agree with the superior court that this is not such a case. Rather, the
record shows that Ronald was antagonistic toward both OCS workers and other service
56 It is simply not credible to
providers long before Alice's allegations in May 2018.
maintain, as Ronald does, that had OCS responded with more urgency to his report of
abuse, he "would have successfully completed his entire case plan." If indeed OCS
failed to offer an apology to Ronald for the harm to Alice as he maintains, that is
56 See Ronald H. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., No. S-16725, 2018 WL 1611648, at *6 (Alaska Mar. 28, 2018) ("The record
indicates that Ronald did not participate in further psychological evaluation that was
recommended after his mental health assessment, nor did he participate in the batterer's
intervention program that was included in his case plan. Rather than working with OCS,
Ronald yelled and swore at OCS workers when asked to adhere to visitation rules and
intimated that he wished to commit violence against them.").
-25- 7541
----------------------- Page 26-----------------------
regrettable. But we cannot conclude that the shortcomings of OCS's investigation
negates its otherwise active efforts to provide Ronald the services and resources needed
to reform his violent and aggressive behavior.
D. Ronald's Allegations Of Racism Do Not Establish A Failure Of Active
Efforts.
Ronald argues that OCS failed to exercise active efforts when its social
workers appeared frustrated by his suggestions of racism. Ronald does not explain how
a court should evaluate assertions of racial insensitivity by social workers within the
largely objective framework for assessing whether OCS has made sufficient efforts "to
provide remedial services and rehabilitative programs designed to prevent the breakup
57
of the Indian family."
Nor does he connect the assertion of racism to any tangible
failure by OCS to provide him services needed to reform his conduct. Instead he focuses
solely on the tenor of his interactions with OCS workers.
As with allegations that OCS failed to keep a child in its custody safe, it is
conceivable that expressions of racial animus by an OCS worker could damage the
relationship between OCS and the parent so much as to thwart otherwise active efforts.
But Ronald does not point to any overt expressions of animus in the record. It is
certainly possible that some of the friction between Ronald and his social workers was
attributable to their different backgrounds and experiences, including Ronald's
experience as a Black man. A parent like Ronald could argue to the superior court that
it should not give much weight to testimony by social workers or service providers about
the parent's hostility, aggression, or other perceived negative conduct because those
perceptions reflect bias, implicit or explicit. It would be up to the superior court to
decide what weight to give this testimony when determining whether OCS made active
57
25 U.S.C. § 1912(d), declared unconstitutional by Brackeen v. Haaland,
994 F.3d 249 (5th Cir. 2021).
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----------------------- Page 27-----------------------
efforts (or whether its relative lack of efforts was excused by the parent's conduct).
Indeed, Ronald did assert below that OCS was hostile to him because of his race, and the
superior court acknowledged this argument. But it did not make that finding and instead
credited the testimony of social workers and service providers that Ronald was
disruptive, threatening, and hostile. Ronald's brief largely ignores these findings about
his behavior and does not argue that the superior court erred in making no express
finding about racial hostility. Ronald therefore fails to show that racial animus or
insensitivity negated the efforts OCS made to promote reunification of the family.
IV. CONCLUSION
The superior court's order terminating parental rights is therefore
AFFIRMED.
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