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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Clark .J. (Father) v. State of Alaska, DHSS, OCS (4/2/2021) sp-7513

Clark .J. (Father) v. State of Alaska, DHSS, OCS (4/2/2021) sp-7513

           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.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



CLARK  J.,                                                        )  

                                                                  )     Supreme Court No. S-17797  

                                                                                        

                                                                                                          

                                 Appellant,                       )  

                                                                  )     Superior  Court  Nos.  3GL-16-00002/  

           v.                                                     )     00003/00004  CN  (Consolidated)  

                                                                  )  

                     

STATE OF ALASKA,                                                                            

                                                                  )    O P I N I O N  

                                                     

DEPARTMENT OF HEALTH &                                            )  

                                                                                                          

                                                      

SOCIAL SERVICES, OFFICE OF                                        )    No. 7513 - April 2, 2021  

                          

CHILDREN'S SERVICES,                                              )  

                                                                  )  

                                 Appellee.                        )  

                                                                  )  



                                                                                                                

                                            

                      Appeal from the Superior Court of the State of Alaska, Third  

                                                                                               

                      Judicial District, Glenallen, Rachel Ahrens, Judge.  



                                                                                                                  

                      Appearances:                Olena   Kalytiak   Davis,   Anchorage,   for  

                                                                                                        

                      Appellant.              Anna         Jay,      Assistant          Attorney          General,  

                                                                                                          

                      Anchorage, and Clyde "Ed" Sniffen, Jr., Acting Attorney  

                                                                                                               

                      General, Juneau, for Appellee. Laura Hartz, Assistant Public  

                                                                                                      

                      Advocate, and James Stinson, Public Advocate, Anchorage,  

                                                               

                      for Guardian Ad Litem.  



                                                                                                                  

                      Before:          Bolger,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                                             

                      Carney, Justices.  [Borghesan, Justice, not participating.]  



                                          

                      CARNEY, Justice.  


----------------------- Page 2-----------------------

I.            INTRODUCTION
  



                             The Office of Children's Services (OCS) took custody of three Indian  

                                                                                                                                                                            

children1  

                                                                                                                                                                                            

                    after reports of substance abuse and domestic violence in their mother's home.  



                                                                                                                                                                                 

For two years OCS was unable to contact the children's father, who also struggled with  



                                                                                                                                                                          

substance abuse issues.                                 Once OCS did contact the father, both he and the mother  



                                                                                                                                                                                     

consented to temporarily place the children with a guardian.   OCS then reduced its  



                                                                                       

efforts to reunify the children with their father.  



                                                                                                                                                                          

                             The  children's  mother  died.                                     The  father  was  incarcerated  for  several  



                                                                                                                                                                                      

months; he completed classes and substance abuse treatment.  After he was released, he  



                                                                                                                                                               

maintained his sobriety and began limited contact with OCS and with his children.  



                                                                                                                                                                            

                             Approximately four years after taking custody of the children, OCS moved  



                                                                                                                                                                             

to terminate the father's parental rights.  After the superior court terminated his rights,  



                                                                                                                                                                                 

the father appealed. He argues that OCS failed to make active efforts to reunify him with  



                                                                                                                                                                         

his children as required by ICWA.  We agree and reverse the termination of his parental  



rights.  



               1             The Indian Child Welfare Act (ICWA) defines "Indian child" as "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 in an Indian tribe."                                   25 U.S.C. § 1903(4) (2018).                   



                                                                                          -2-                                                                                  7513
  

   


----------------------- Page 3-----------------------

II.        FACTS AND PROCEEDINGS
     



           A.        Background  

                                  2  is the father of Antoine, Oona, and Jenna. The children's mother,  

                     Clark J.                                                                                                  

Melina B., died in April 2019.   The children are members of Melina's tribe.3  

                                                                                                                                   OCS  



                                                                                                           

received several reports concerning the family between 2005 and 2014, and for a time  



                                           

the children were in tribal custody.  



                                                                                                                                     

                     In January 2016 the children were living with their mother in Chitina. OCS  



                                                                                                                         

removed the children from Melina after receiving reports she was abusing alcohol and  



                                                                                                                                        

engaging in domestic violence with her mother.  OCS was unable to contact Clark.  In  



                                                                                                                                       

February 2016 the superior court granted OCS's petition for temporary custody of the  



                                                                                                                                        

children.         In  May  Melina  stipulated  that  the  children  were  in  need  of  aid,  and  in  



                                                                                                                                             

December  she  stipulated  to  OCS  custody  for  a  period  not  to  exceed  two  years.  



                                                                                                 

Eventually the children were placed in the care of Melina's relative.  



                                                                                                                                       

                     For the first two years that OCS had custody of the children, Clark was not  



                                                                                                                                     

involved.  Clark later testified that he learned his children were in OCS custody in July  



                                                                                                                                      

2016, but that he did not get involved in the case because Melina told him "that she had  



                                                                                                                                   

everything under control and that if [Clark] had any involvement it would just only make  



                                                                                                                                 

things harder because [Clark and Melina] weren't together at the time." OCS was unable  



                                                                                                                                  

to contact Clark during that time. Clark did not visit the children, but he had some phone  



                                                                            

contact with the children when Melina visited them.  



                                                                                                                               

                     In early 2018 OCS was able to reach Clark through Facebook.  In January  



                                                                                                                                         

2018 OCS petitioned to terminate both parents' parental rights.  Clark appeared at a  



           2         Pseudonyms are used to protect the privacy of the parties.                        



           3  

                                                                                                                              

                     Melina was enrolled in the Gwichyaa Zhee Gwich'in Tribe.  The children  

                                                                                                  

are therefore Indian children under ICWA.  See 25 U.S.C. § 1903(4).  



                                                                   -3-                                                             7513
  

   


----------------------- Page 4-----------------------

                                                                                                                                      

permanency hearing in February 2018 - the first time he had participated in the case.  



                                                                                                                             

Both  parents later  consented to a relative's guardianship of the children,  and  OCS  



                                                                                                                          

abandoned its effort to terminate parental rights. In February 2019 thecourt held another  



                                                                                                                  

permanencyhearing, which Clarkdid not attend; thecourtmadeprovisional permanency  



                                                                                                                                  

findings which it later adopted, including a finding that OCS had made active efforts to  



                   

reunify the family.  



                                                                                                                               

                    Clark was incarcerated from March to May 2018. Although OCS sent him  



                                                                                                                               

a letter in April, Clark did not recall receiving one while he was in jail.  For over a year  



                                                                                             

Clark had no further contact with OCS; then Clark initiated contact.  



                                                                            

                    Melina died in April 2019.  Shortly afterwards, Clark saw the children at  



                                                                                                                               

Melina's mother's apartment and then at Melina's funeral.   Clark was arrested and  



                                                                                       

incarcerated in June.  While incarcerated, he completed a parenting class and attended  



                                                                                                                               

weekly Alcoholics Anonymous meetings.   He was released from jail in August and  



                                                                                        

began a three-month inpatient substance abuse program.  



                                                                                                                            

                    Around  this  time  he  began  monthly  contact  with  OCS.                                     The  OCS  



                                                                                                                          

caseworker who had been assigned to the case since March 2016 first discussed Clark's  



                                                                                                                              

case plan with him while he was in treatment in October, over three years after OCS took  



                                                                                                                       

custody of the children.  Clark's case plan required him to "be compliant with criminal,  



                                                                                                                              

court,  facility  &  probation  requirements,"  "live  a  healthy  &  sober  lifestyle,"  and  



                                                                                                                               

"develop & maintain a bond with his children."  At the end of October, OCS noted that  



                                                                        

Clark had made some progress on each of the goals.  



                                                                                                                                

                    Clark had some phone contact with the children between his release and the  



                                                                                                                                  

trial, and he sent them one letter.  He did not respond to a letter the children sent back to  



him.  



                                                                -4-                                                         7513
  

   


----------------------- Page 5-----------------------

                             B.                          Termination Trial   



                                                         In January 2020 OCS again petitioned to terminate parental rights. At trial                                                                                                                                                                                                                           



in March OCS called four witnesses:                                                                                                                            the children's guardian, Clark, an ICWA expert,                                                                                                                                    



and the assigned caseworker.                                                                                                   The guardian testified generally about the children and                                                                                                                                                                          



their limited contact with their father.                                                                                                                          Next OCS called Clark.                                                       



                                                         Clark admitted that he had had "a problem with alcohol" for many years.                                                                                                                                                                                                                                                    



He testified that he was now sober, attended Alcoholics Anonymous meetings regularly,                                                                                                                                                                                                                                                  



and had been in outpatient treatment until he took "a pause" to take care of his newborn                                                                                                                                                                                                                                                  



 son. He testified that while incarcerated, he had completed classes including a parenting                                                                                                                                                                                                                                         



class and anger management classes.                                                                                                                              He explained he had chosen to enter substance                                                                                              



abuse treatment after                                                                            his release from jail and had                                                                                                      been   sober   since June 1,                                                                                      2019,  



although he acknowledged that he occasionally continued to use marijuana. He testified                                                                                                                                                                                                                                                        



that he had made changes in his life because he wanted to be part of his children's lives                                                                                                                                                                                                                                                                   



and "would like . . . a chance to be - to be their father."                                                                                                                                                      



                                                         After callingClark,OCSpresentedtestimony                                                                                                                                                     fromasocial                                           worker who                                          had  



reviewed OCS's records to satisfy ICWA's requirement for expert testimony "that the                                                                                                                                                                                                                                                                               



continued custody of the child by the parent . . . is likely to result in serious emotional                                                                                                                                                        

                                                                                                                                                  4         The OCS expert opined that the children "would  

or physical damage to the child."                                                                                                                                                                                                                                                                                                              



likely suffer serious physical or emotional harm if returned to [Clark's] care."  

                                                                                                                                                                                                                                                                                                                  



                                                         OCS's final witness was the assigned caseworker, who testified about her  

                                                                                                                                                                                                                                                                                                                                                                  



involvement with the family and the efforts taken to reunite Clark with his children. She  

                                                                                                                                                                                                                                                                                                                                                               



explained that she had been unable to locate Clark when she was first assigned to the  

                                                                                                                                                                                                                                                                                                                                                                  



case.  She testified that according to her notes, she first tried to search for relatives that  

                                                                                                                                                                                                                                                                                                                                                                



                             4  

                                                                                                                                                  

                                                         25 U.S.C. § 1912(f).  



                                                                                                                                                                                   -5-                                                                                                                                                                                        7513  

   


----------------------- Page 6-----------------------

could care for the children in 2017.                                                      She contacted individuals in Chitina as well as the                                                                   



Chistochina tribe, with which she had heard Clark was affiliated.                                                                                                 She also asked if any                        



of themknew Clark or had recently had contact with him, but acknowledged that she was                                                                                                                         



not successful.                        She also testified that she contacted state troopers, who had an arrest                                                                                           



warrant for Clark; Clark's girlfriend, who did not acknowledge that she knew him; and                                                                                                                          



Clark's father; and his cousin.                                                 The caseworker testified that she continued to search                                                                  



unsuccessfully for Clark throughout 2017, and that the children's mother did not share                                                                                                                    

much information about him.                                              5  



                                 The caseworker testified that she reached Clark via Facebook in early 2018  

                                                                                                                                                                                                            



and sent a letter to him in jail in April.  She stated that Clark did not reply to her letter,  

                                                                                                                                                                                                         



and that she made a case plan but did not discuss it with him until over a year later in  

                                                                                                                                                                                                                  



October 2019.  After she went over the case plan with him, Clark contacted her each  

                                                                                                                                                                                                            



month.  



                                 Oncross-examination thecaseworker admittedthatshehadnotconsistently  

                                                                                                                                                                                           

                                                                                                                                                                                              6   She also  

kept written notes of her contacts in the case as she was required to do by law.                                                                                                                              

                                                                                                                                                                                    



acknowledged that although she knew Clark was on probation and at times in jail, she  

                                                                                                                                                              



did not attempt to locate him through databases that were available to her to locate  

                                                                                                                                                                                                        



incarcerated people because she did not know about them.  

                                                                                                                                    



                                 The caseworker testified that after Clark consented to guardianship for the  

                                                                                                                                                                                                                



children, she further reduced her attempts to locate him because she did not understand  

                                                                                                                                                                                            



that OCS had a continuing obligation to make active efforts.  She also admitted that she  

                                                                                                                                                                                                               



                 5               Clark  later  acknowledged  that  he  avoided  contact  with  OCS  because  of  the  



warrant.  



                 6               See  25  C.F.R.  §  23.120(b)  (2018)  ("Active  efforts  must  be  documented  in  



the  record.").  



                                                                                                        -6-                                                                                                7513
  

   


----------------------- Page 7-----------------------

did not create a family contact plan even though Clark was requesting more contact with                                                                                               



his children. And she stated that instead of setting up a schedule of phone calls between                                                                                    



Clark and               his   children, she gave him the number                                                     for  the Court Appointed Special                          

                                         7  working with the guardian ad litem on the case, and told him "to  

Advocate (CASA)                                                                                                                                                                         



work that out with her."   She acknowledged that she did not set up drug testing or  

                                                                                                                                                                                          



parenting classes for Clark.   The caseworker attributed her failure to document her  

                                                                                                                                                                                       



efforts in the case to being "very new and inexperienced" and having been assigned an  

                                                                                                                                                                                          



"overwhelming" number of cases.  

                                                               



                              Clark testified on his own behalf and also called an investigator from his  



attorney's office.  The investigator testified about some of the online systems available  

                                                                                                                                                                           



to both the public and state agencies to locate individuals involved with the Department  

                                                                                                                                                                     



of Corrections (DOC) and law enforcement agencies.  

                                                                                                  



               C.             Termination Order  

                                                             



                              In May 2020 the superior court terminated Clark's parental rights.  The  

                                                                                                                                                                                      



court found that the children were in need of aid as a result of Clark's abandonment and  

                                                                                                                                                                                       

substance abuse.8                         It noted that "[t]his was not a close question," because Clark "made  

                                                                                                                                                                   



no effort to provide support or make meaningful communication for approximately two  

                                                                                                                                                                                       



years" and his struggles with alcohol had led to three DUI convictions.  

                                                                                                                                  



               7             A CASA is a "volunteer trained and supervised by professional program   



staff to speak up for abused and neglected children in child welfare court cases."                                                                                                   Who  

 We Are: Frequent                        Questions, A                LASKA  CASA, https://www.alaskacasa.org/who-we-are/   

frequent-questions.html (last visited Mar. 22, 2021).                                                                CASA volunteers work under the                                      

supervision of the assigned guardian ad litem in child in need of aid (CINA) cases.                                                                                                     Id.  



               8             See  AS  47.10.011  subsections  (1)  (abandonment)  and  (10)  (substance  

                                                                                                                                                                       

abuse).  



                                                                                            -7-                                                                                     7513
  

   


----------------------- Page 8-----------------------

                                              The court also                                       found that OCS had made active efforts to reunify the                                                                                                                                   



 family, but described its finding as "a very close call" because "OCS could have done   



 a better job at making active efforts in the 24 months immediately preceding this trial."                                                                                                                                                                                                                



 The court relied in part on Melina's stipulation to active efforts in 2016 and its active                                                                                                                                                                                        



 efforts findings in February 2018 and in April 2019. The court observed that "the State's                                                                                                                                                                                      



 efforts   to  reunite   him   with   the   children   became   less   active"   after   Clark   agreed   to  



 guardianship, but found active efforts based upon OCS's efforts before then. And finally                                                                                                                                                                                        



the court determined that termination of Clark's parental rights was in the children's best                                                                                                                                                                                               



 interests.  



                                              Clark appeals, arguing that OCS did not make active efforts to reunify him                                                                                                                                                                  



with his children and that the court's finding of active efforts tainted its other findings                                                                                                                        



under ICWA.   



III.                   STANDARD OF REVIEW                                              



                                              "Whether   the   state   complied   with   the   'active   efforts'   requirement   of  



                                                                                                                                                                9  

 [ICWA] is a mixed question of law and fact."                                                                                                                                                                                                                                  

                                                                                                                                                                       "[W]e review the trial court's factual  

                                                                                                                                                                                                             10  "We will find clear error  

                                                                                                                                                                                                                                                                                      

 findings for clear error and its legal determinations de novo." 



 only when a review of the entire record leaves us 'with a definite and firm conviction  

                                                                                                                                                                                                                                                                  

that the superior court has made a mistake.' "11  

                                                                                                                                                       



                       9                     Jude M. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.                                                                                                                                                                             ,  



 394 P.3d 543, 550 (Alaska 2017) (alteration in original) (quoting                                                                                                                                                                    Maisy W. v. State,                           

Dep't of Health &Soc. Servs., Office of Children's Servs.                                                                                                                                        , 175 P.3d 1263, 1267 (Alaska                                               

2008)).  



                       10                    Id.  (quoting Emma D. v. State, Dep't of Health & Soc. Servs., Office of  

                                                                                                                                                                                                                                                                                                

 Children's Servs., 322 P.3d 842, 849 (Alaska 2014)).  

                                                                                                                                                             



                       11                    Id.  (quoting David S. v. State, Dep't of Health & Soc. Servs., Office of  

                                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                          (continued...)  



                                                                                                                                               -8-                                                                                                                                    7513
  

   


----------------------- Page 9-----------------------

IV.       DISCUSSION  



                    Clark first argues that OCS failed to make active efforts to reunify his  

                                                                                                                  

family as required by ICWA.12  

                                                                                                                     

                                               He also argues that OCS failed in its separate obligation  



                                                                                                               

to document active efforts. Finally he argues that the court's active efforts determination  



                                                                                                                      

"tainted"its other findings,"render[ing]suspect"itsfindings that Clarkhadnotremedied  



                                                                                                                              

his conduct, that reunification posed a substantial risk of harm, and that termination was  



                                  

in the children's best interests.  



                                                                                                

          A.        OCS Failed To Satisfy ICWA's Active Efforts Requirement.  



                                                                                                                           

                    Clark argues that OCS failed to meet its active efforts requirement in either  



                                                                                  13  

                                                                                                                           

the first two years of the case or the second two years.                              He points out that OCS failed  



                                                                                                                                

to even draft a case plan for him until April 2018.  He also argues that OCS failed in its  



                                              

separate duty to document its efforts.  



          11        (...continued)  



                                                                       

Children's Servs., 270 P.3d 767, 774 (Alaska 2012)).  



          12        25 U.S.C. 1912(d) (requiring a party seeking termination of parental rights  

                                                                                                                           

to an Indian child to "satisfy the court 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").  

                                                                           



          13        The superior court's termination order referred to both "reasonable efforts"  

                                                                                                                         

and "active efforts."  All cases involving Indian children are subject to ICWA's more  

                                                                                                                            

stringent "active efforts" requirement.  Id.  We express no opinion about whether the  

                                                                                                                               

court's apparent confusion about the proper level of effort required of OCS may have  

                                                                                                                            

influencedits "very close call" finding active efforts. We take this opportunity, however,  

                                                                                                                      

to emphasize that "active efforts" to reunify the Indian family are required in every  

                                                                                                                           

ICWA case and that courts may not substitute thelower "reasonable efforts" requirement  

                                                                                                                  

of non-ICWA cases.  See Kylie L. v. State, Dep't of Health & Soc. Servs., Office of  

                                                                                                                                 

Children's Servs., 407 P.3d 442, 448 n.6 (Alaska 2017) (noting the "active efforts"  

                                                                                                                        

standard is more demanding than the "reasonable efforts" standard).  

                                                                                         



                                                               -9-                                                         7513
  

   


----------------------- Page 10-----------------------

                          ICWA defines active efforts as "affirmative, active, thorough, and timely                                                       



                                                                                                                                                                  14  

efforts intended primarily to maintain or reunite an Indian child with his or her family."                                                                             



When analyzing whether the State has made these active efforts, courts may consider  

                                                                                                                                                      

                                                                                                                                   15   OCS efforts are  

services provided by state agencies other than OCS, including DOC.                                                                                              

                                                                                                                        



not  active  "where  a  plan  is  drawn  up  and  the  client  must  develop  his  or  her  own  

                                                                                                                                                             



resources towards bringing it to fruition," but rather where the "caseworker takes the  

                                                                                                                                                                

client through  the steps of the plan."16                                        It was clear error for the superior court to  

                                                                                                                                                                  



determine that OCS made active efforts to reunify Clark with his children.  

                                                                                                                              



                          1.          It was error to rely upon Melina's stipulations.  

                                                                                                              



                          The superior court based its active efforts finding in part on Melina's  

                                                                                                                                                    



                                                                                              17  

                                                                                                                                                               

stipulations and findings during earlier hearings.                                                  Melina stipulated to "[a]ctive and  

                                                                             



                                                                                                                                                                  

reasonable efforts" in May 2016, and again in December 2016, in her stipulation to  



             14           25 C.F.R. § 23.2 (2020).          



             15          Denny M. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                  



Servs., 365 P.3d 345, 350 (Alaska 2016).  

                                                                   



             16          Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                 

Servs., 249 P.3d 264, 271 (Alaska 2011) (quoting Dale H. v. State, Dep't of Health &  

                                                                                                                                                                  

Soc. Servs., Office of Children's Servs., 235 P.3d 203, 213 (Alaska 2010)).  

                                                                                                                                  



             17           The active efforts finding  from February 2018  cited  "substance abuse  

                                                                                                                                                          

assessment/treatment; random UAs; efforts to locate; transportation assistance to attend  

                                                                                                                                                          

services; developing/updating case plan, family contact."   The only listed effort that  

                                                                                                                                                              

could have pertained to Clark, who had not been involved in the case until the February  

                                                                                                                                                     

2018 hearing, would have been the attempts to locate him.  Similarly the April 2019  

                                                                                                                                                

active  efforts  finding  listed  substance  abuse  assessment/treatment,  transportation  

                                                                                                                                          

assistance, random drug testing, and family contact, but only family contact appears to  

                                                                                                                                                                  

apply to Clark. The caseworker did not set up drug tests for him, and Clark testified that  

                                                                                                                                                               

he sought out substance abuse treatment himself. And there is no indication in the record  

                                                                                                                                                          

that OCS ever assisted Clark with transportation.  

                                                                   



                                                                               -10-                                                                         7513
  

   


----------------------- Page 11-----------------------

continued OCS custody. Clark never stipulated to active efforts. He did not get involved                                                                                                                                              



in the case until February 2018. Clark did consent to guardianship in May 2018, but the                                                                                                                                                                



document   he   signed   did   not   mention   active   efforts.     Clark   cannot   be   bound   by  



stipulations to which he is not a party.                                                                            It was error for the superior court to rely upon                                                                             



Melina's stipulations to find that OCS made active efforts to reunify Clark with the                                                                                                                                                                  



children.   While the superior court may consider findings from hearings in which Clark                                                                                                                                                         



participated, those findings are not dispositive.                                                       

                                        2.                 OCS made active efforts for the first two years of the case.                                                                                                                            18  



                                                                                                                                                                                                                                                   

                                        Clark first argues that OCS failed to make active efforts to reunite him with  



                                                                                                                                                                                                                                                 

his children during the first two years of the case.   But he "concedes that the state  



                                                                                                                                                                                                                                                  

actively engaged with Melina and with the children." And he acknowledges that he "was  



                                                                                                                                                                                                                                                      

not eager to engage with OCS" both because Melina had recommended against his  



                                                                                                                               

involvement and because he was avoiding arrest.  



                                                                                                                                                                                                                                                          

                                        In Dashiell R. v. State, Department of Health & Social Services, Office of  



                                                                                                                                                                                                                                                  

 Children's Services, we upheld a finding of active efforts where "the state's efforts were  



                                                                                                                                                                                                                                                      

heavily oriented towards the mother" and the state directed fewer efforts towards the  

                                                                                                                                                                          19      We reasoned that "had the  

                                                                                                                                                                                                                                                       

father, who was unavailable because he was incarcerated. 



children  been  able  to  stay  with  the  mother,  who  was  not  incarcerated,  there  is  no  

                                                                                                                                                                                                                                                       



                    18                  Like the superior court and the parties, we consider the active efforts in two                                                                                                                               



parts:   the first two years, before the caseworker contacted Clark via Facebook; and the                                                                                                                                                              

second two years, from her early 2018 message to Clark through the 2020 termination                                                                                                                          

of parental rights.               



                    19                  222 P.3d 841, 849 (Alaska 2009).  

                                                                                                                         



                                                                                                                          -11-                                                                                                                   7513
  

   


----------------------- Page 12-----------------------

                                                                                                                                                                                      20  

indication [the father's] parental rights would have been terminated."                                                                                                                       There is no             



dispute that OCS made active efforts towards Melina in the first two years of this case.                                                                                                                                       



                                  As in          Dashiell R.                   , OCS did make some efforts towards Clark despite his                                                                                 



lack of participation during the first two years of the case.                                                                                      The caseworker attempted to                                          



find relative placements for the children by contacting the tribe she believed was Clark's                                                                                                                                     



and people who knew                                    Clark, including his father and his girlfriend, who denied knowing                                                                              



him.   The caseworker also contacted the troopers after learning there was a warrant for                                                                                                                             



Clark's arrest.   



                                  Although a parent's "lack of effort does not excuse OCS's failure to make                                                                                                    

                                                                         21  a court may consider a parent's "demonstrated lack of  

and demonstrate its efforts,"                                                                                                                                                                                          

willingness to participate" when evaluating active efforts.22  OCS's efforts towards Clark  

                                                                                                                                                                                                               



in this period were far from perfect; for example, Clark correctly points out that OCS did  

                                                                                                                                                                                                                     



not  attempt  to  contact  him over  Facebook  for  two  years,  and  that  he  immediately  

                                                                                                                                                                                           



responded.  But by his own admission, Clark had avoided OCS up to that point.  OCS's  

                                                                                                                                                                                                           



"[f]ailed attempts to contact the parent . . . may qualify as active efforts if the parent's  

                                                                                                                                                                                              

evasiveor combative conduct 'rendered provision of services practicallyimpossible.' "23  

                                                                                                                                                                                                                               



As in Dashiell R., OCS's efforts to reunify Melina with the children in the first two years  

                                                                                                                                                                                                               



                 20               Id.  at 850.   



                 21               Bill S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                                                            

436 P.3d 976, 983 (Alaska 2019).  

                                                                                        



                 22               Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                                                

Servs., 175 P.3d 1263, 1268 (Alaska 2008) (quoting N.A. v. State, Div. of Family &  

                                                                                                                                                                                                                       

 Youth Servs., 19 P.3d 597, 603 (Alaska 2001)).  

                                                                                                      



                 23               Sylvia L. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                                                            

343 P.3d 425, 433 (Alaska 2015) (quoting E.A. v. State, Div. of Family & Youth Servs.,  

                                                                                                                                                                                                            

46 P.3d 986, 990 (Alaska 2002)).  

                                                                   



                                                                                                         -12-                                                                                                   7513
  

   


----------------------- Page 13-----------------------

of the case, combined with its imperfect efforts towards Clark, are sufficient to satisfy  



OCS's active efforts requirement during the first two years.  

                                                                                   



                    Clark also argues that OCS failed to adequately document its efforts to find  

                                                                                                                               



him, which is a separate responsibility that "is required by ICWA and is critical to  

                                                                                                                                 

compliancewith ICWA's purposeand key protections."24  Thecaseworker conceded that  

                                                                                                                               



she did not always document her efforts.  But the documentation and testimony she did  

                                                                                                                                



providearesufficient to support the superior court's finding that OCSmadeactiveefforts  

                                                                                                                           



towards Clark, as well as towards Melina, in the first two years of the case.  

                                                                                                            



                    3.	        OCS failed to make active efforts during the second two years  

                                                                                                         

                               of the case.  

                                          



                    We agree with Clark that OCS failed to make active efforts in the last two  

                                                                                                                               



years of the case.  The superior court found that "OCS could have done a better job at  

                                    



making active efforts in the 24 months immediately preceding this trial."  The court  

                                                                                                                             



detailed OCS's failures in its termination order:   the caseworker did not provide an  

                                                                                                                                 



updated case plan to Clark; did not attempt to use VINELink or ACOMS to search for  

                                                                              



him while he was incarcerated; sent one letter but did not visit him in jail; did not refer  

                                                                                                                              



him to treatment while in custody; did not refer him to drug testing or parenting classes  

                                                                                                                          



when he was released; and did not schedule in-person visits with his children.  Despite  

                                                                                                                         



these failures, the superior court concluded that OCS met the active efforts requirement.  

                                                                                                                                      



This was error.  

                         



                    As the superior court found, "once [Clark] agreed to guardianship of the  

                                                                                                                                



children . . . [OCS]'s efforts to reunite him with the children became less active."  The  

                                                                                                                               



caseworker testified that after Clark consented to guardianship, she stopped looking for  

                                                                                                                                



him "as much as [she] was prior to that." And when questioned about OCS's continuing  

                                                                                                                     



          24        Bill  S.,  436  P.3d  976,  983  (Alaska  2019).  



                                                               -13-                                                             7513  

  

   


----------------------- Page 14-----------------------

requirement   to   provide   active   efforts   after   a   parent   consented   to  guardianship,   the  



caseworker testified that she did not "really underst[an]d that fully at that time" and that                                                                                            



her "attention was more strongly focused on Melina at that time."                                                                   



                              In fact, the record indicates that OCS may have stopped trying to contact                                                                   



Clark entirely.                   The caseworker testified that she sent a letter to Clark after he consented                                                             



to guardianship, but she also testified that she wrote the letter in April, which was before                                                                                      

                                                                         25    And there is no evidence that OCS made any effort  

Clark consented to guardianship.                                                                                                                                                    



to contact Clark between the spring of 2018 and October 2019, when Clark contacted  

                                                                                                                                                                          



OCS.   OCS concedes its "lack of engagement with [Clark] between April 2018 and  

                                                                                                                                                                                       



October 2019."  There is no indication that OCS attempted to contact Clark even after  

                                                                                                                                                            



Melina's death.  It was only after Clark took the initiative to contact OCS that OCS  

                                                                                                                                                                                    



renewed its efforts toward him.  

                                                            



                             As the superior court noted, OCS did not use VINELink or ACOMS to  

                                                                                                                                                                                           



search for Clark, did not refer him to treatment while he was incarcerated, and "sent him  

                                                                                                                                                                                       



one letter in jail, but never visited him there."  OCS did not provide a copy of the case  

                                                                                                                                     



plan to Clark until October 2019, nearly four years after taking custody of his children.  

                                                                                                                                                                                                  



                              Even after Clark initiated contact with OCS in October 2019, OCS made  

                                           



minimal efforts to encourage contact between him and his children.  After Clark told  

                                                                                                                                                                         



OCS he was "frustrated by the lack of contact," the caseworker gave him the CASA's  



phone number to work out a telephone schedule, but did not assist him in preparing that  

                                                                                                                                                                                       



schedule.  And although OCS assisted Clark in sending a letter to the children, it never  

                                                                                                                                                                                   



developed a family contact plan. The superior court concluded that the OCS caseworker  

                                                                                                                                                                       



"did  not  do  enough  to  actively  facilitate  the  goal  of  bonding  with  the  children."  

                                                                                                                                                                                                  



               25  

                                                                                                                   

                              Clark maintains he never received the letter.  



                                                                                           -14-                                                                                             7513  

   


----------------------- Page 15-----------------------

Although we consider the services DOC provided to Clark when we analyze active                                                                  



             26  

efforts,                                                                                                                                             

                 those services are not enough to compensate for OCS's lack of effort in this  



         27  

case. 



                                                                                                                                                   

                        OCS correctly points out that "inadequate efforts in one period of state  



                                                                                                                                                

involvement do not render the entirety of [its] efforts inadequate, even when that period  

                                                     28   And the superior court correctly found that OCS had  

                                                                                                                                                     

lasts for a matter of months." 



made active efforts to reunify Clark and his children during the first two years of the  

                                                                                                                                                     



case.        But  OCS's  failure  to  make  adequate  efforts  in  this  case  encompassed  the  

                                                                                                                                                     



subsequent two years, fully half of the time that the case was open.   And its failure  

                                                                                                                                               



during that two year time period was extreme:  OCS did not even attempt to contact  

                                                                                                                          



Clark for a year and a half, and may have gone even longer without doing so if Clark had  

                                                                                                                                                     



not initiated contact himself.  OCS's failure to make active efforts in the second two  

                                                                                                                                                    



years of the case was so egregious that the efforts during the earlier period cannot make  

                                                                                                                                                  



up for it.  Because OCS's efforts to reunite Clark with his family following his consent  

                                                                                                                                             



to guardianship were minimal at best, we reverse the superior court's finding that OCS  

                                                                                                                                                   

met the active efforts requirement.29  

                                        



            26          Denny M. v. State, Dep't of Health & Soc. Servs., Office of Children's                                          



Servs., 365 P.3d 345, 350 (Alaska 2016).                       



            27          See Duke S. v. State, Dep't of Health & Soc. Servs.,Office of Children's  

                                                                                                                                        

Servs.,  433  P.3d 1127, 1137 (Alaska 2018) (holding that DOC services father had  

                                                                                                                                                    

arranged  without  OCS  assistance  were  insufficient  to  make  up  for  OCS's  lack  of  

                                                                                                                                                       

reasonable efforts).  

                     



            28          Philip J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                

314 P.3d 518, 528 (Alaska 2013).  

                                                  



            29          Because  our  determination  that  OCS  failed  to  make  active  efforts  is  

                                                                                                                                                       

                                                                                                                                   (continued...)  



                                                                          -15-                                                                    7513
  

   


----------------------- Page 16-----------------------

V.        CONCLUSION  



                             The  superior  court's  decision  is  REVERSED  and  the  case  is  

                                                                                                                            



REMANDED for further proceedings consistent with this opinion.  

                                                                                      



          29        (...continued)  



                                                                                                         

dispositive, we need not address whether the superior court's active efforts finding  

                                                                                                                

tainted the rest of its analysis.  See CINA Rule 10.1(b)(2) (requiring court to "postpone  

                                                                                         

disposition until the court finds that active efforts have been made").  



                                                            -16-                                                       7513
  

   

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