as: 26 P.3d 1089)
Court of Alaska.
of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Division of
of Alaska, Department of Health & Social Services, Division of
Matthews, J., dissented and filed opinion in which Bryner, J.,
cases concerning termination of parental rights, appellate court will affirm
the trial court's factual findings unless findings are clearly erroneous.
trial court's factual findings in termination of parental rights case
are sufficient to satisfy child in need of aid (CINA)
rules is question of law, to which appellate court applies
its independent judgment.
of whether state in termination of parental rights case has
complied with Indian Child Welfare Act's (ICWA) requirement that active
efforts have been made to provide remedial services is mixed
question of law and fact, and legal elements of this
question, and any other purely legal questions, are reviewed de
novo. Indian Child Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
determining whether to terminate parental rights, court considers best interests
of the child.
of mother's parental rights was warranted; to put off termination
of rights would be detrimental to welfare and best interests
of children because children needed permanent placement as soon as
reasonably possible, mother
had made little effort to visit children since their birth,
she was difficult for social workers to locate, and she
continued to abuse drugs and pursue her nomadic and chaotic
lifestyle. AS 47.10.088.
of father's parental rights was warranted, given his role in
postponing paternity testing, his incarceration and resulting unavailability to care
for children in their formative early years, and likelihood that
he would not be able to provide stable home to
these special needs children even when he was released from
Indian Child Welfare Act (ICWA), state did not owe father
active efforts to provide remedial services designed to prevent breakup
of Indian family until paternity had been established, and thus,
Division of Family & Youth Services (DFYS) had no duty
to undertake active efforts during the time between children's birth
and the subsequent determination of father's paternity. Indian Child Welfare
Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
Division of Family and Youth Services (DFYS) determined that father
was biological father of children, its duties under Indian Child
Welfare Act (ICWA) to provide remedial services were triggered in
termination of parental rights case, but even then the scope
of its duties was reduced by father's incarceration, and because
of this reduction, DFYS's efforts in weeks after confirmation of
father's paternity met Act's active efforts requirement in that Department
of Corrections enrolled father in classes and treatment programs. Indian
Child Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
Bethany Spalding, Assistant Public Defender, Fairbanks, and Barbara K. Brink,
Public Defender, Anchorage, for Appellant T.F.
Thomas E. Fenton, Law Office of Thomas E. Fenton, Fairbanks,
for Appellant S.L.M.
Karla Taylor-Welch, Assistant Attorney General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
FABE, Chief Justice.
S.F. and C.F. are twin children in need of aid.
Their mother suffers from a serious and long-term addiction to
cocaine, and she saw the twins only once between their
birth and the termination proceeding in this case. Their father
was incarcerated at the time of their birth and absconded
from custody shortly thereafter. In part because of his absence
and in part because of delays by the State, Department
of Health & Social Services, Division of Family
& Youth Services (DFYS), the father's paternity was not promptly
determined and DFYS did not develop a case plan for
him until nearly eight months after the twins' birth. The
superior court terminated the parental rights of both parents, and
the parents challenge that termination. We affirm the superior court's
termination of parental rights for both parents.
S.F. and C.F. are Indian twins born prematurely on July
22, 1999. The twins were developmentally damaged by prenatal cocaine
exposure and may also suffer from fetal alcohol syndrome. Within
days of their birth, DFYS assumed emergency custody of them.
Since that time, they have primarily been cared for by
a foster mother. In October a court found the twins
to be children in need of aid, and committed them
to the temporary custody of the State. DFYS petitioned on
November 15, 1999 for termination of parental rights, and in
April 2000 Superior Court Judge Ralph R. Beistline terminated the
rights of both parents.
S.M., the mother, acknowledges a "significant history of substance abuse
and associated illegal activity"; the trial court expressed particular concerns
about the likelihood of her overcoming her addiction to cocaine.
S.M. used cocaine and alcohol during her pregnancy, received almost
no prenatal care, and did not know she was having
twins until the second baby was born. As of S.F.
and C.F.'s nine-month birthday, S.M. had visited the twins once,
and had missed three
other scheduled visits. According to a social worker's account of
S.M.'s sole visit with the twins, S.M. was afraid to
be alone with the children and allowed her son to
cry for ten minutes without picking him up or attempting
to soothe him. She also failed to appear for a
residential rehabilitation program after DFYS had arranged bed dates for
her in *1091
September 1999 and again in January 2000. Only in the
month before trial--almost eight months after the birth of the
twins--did S.M. enter a rehabilitation program. S.M. may have to
remain in the program for up to two years, and
her potential for successful completion of the program is uncertain.
The court found that she has a high relapse potential.
S.M. has other children who do not live with her
and for whom she has been unable to care.
S.M. told DFYS that T.F. was the twins' father. Although
T.F. initially questioned paternity, a blood test eventually proved him
to be the twins' biological father. Like S.M., T.F. has
a long-term problem with cocaine, although the court found that
his addiction is less severe than hers. He also has
another child, an eight-year-old daughter with whom he has lost
contact. The trial court found that T.F. "has an extensive
criminal record and has been unable throughout his adult life
to remain clean and sober for any significant period of
time," or to comply with rehabilitation efforts.
T.F.'s whereabouts were unknown at the time of the twins'
birth, but in early August the DFYS intake supervisor learned
that T.F. was incarcerated in the
Fairbanks Correctional Center. The supervisor mailed T.F. a letter and
preliminary case plan indicating that the department would arrange for
paternity testing. The supervisor then transferred the case, including a
plan for paternity testing for T.F., to a social worker.
The social worker, Holly Byrnes, was unfamiliar with the testing
process, had a family emergency at the time, and assumed
that the incarcerated T.F. would easily be available for testing;
it therefore took her somewhat longer than usual to arrange
for a paternity test. DFYS filed a motion for the
test on August 17, and the superior court ordered paternity
testing; it distributed the order on September 9, 1999. The
test was scheduled for October 13.
By the time the superior court issued the test order,
however, T.F. had absconded from custody. Because S.M. told Byrnes
that she was in contact with T.F., Byrnes gave S.M.
information about T.F.'s scheduled testing appointment and explained that T.F.
could participate in the test without risk of the authorities
being notified. Although T.F. spoke to S.M. during this period,
he did not appear for the test and did not
T.F. returned to custody on November 7, 1999, a Sunday.
However, Byrnes was already scheduled to depart the following morning
for a month-long stint at the Nome DFYS office. She
asked another DFYS representative in Fairbanks to set up the
test, but learned upon her return to Fairbanks that no
test had been arranged. Byrnes arranged for the test on
her first day back in Fairbanks, on December
9, 1999. The test took place on December 28, but
results were not available until February 29, 2000.
On January 11, 2000, while the test results were still
pending, Byrnes visited T.F. in jail. They spoke for thirty
or forty minutes about his case, but did not develop
a substantive case plan. T.F. expressed an interest in involvement
in the case if the children were his, but remained
very doubtful that he was the father. Byrnes apparently next
contacted T.F. in a March 1 letter, advising him that
the twins were in fact his son and daughter. T.F.
called and wrote to Byrnes to request visits with the
babies, and his attorney called Byrnes on March 17 to
arrange a meeting. Byrnes, T.F., and T.F.'s attorney met on
March 28; apparently they would have met earlier but for
the attorney's schedule. The three met for thirty minutes and
prepared a case plan for T.F. They did not discuss
classes and services available to T.F. in jail, although Byrnes
did later contact the jail to learn which services T.F.
had participated in, and to confirm that he had completed
a substance abuse program. T.F. testified that, while incarcerated, he
took a six-week parenting class and extra courses on fetal
alcohol syndrome, and completed an eight to ten-week inmate alcohol
and substance abuse program.
Byrnes also supervised three visits between T.F. and the twins,
on March 23, March 30, and April 6, 2000; a
fourth visit was canceled due to a DFYS scheduling problem.
She initially worried about the twins' reactions to the unfamiliar
environment of the jail and the presence of a strange
man, in light of their previous difficult visit with their
mother. However, Byrnes ultimately concluded that the visits were positive.
The superior court held a trial on termination of parental
rights on April 17- 19, 2000. The parties stipulated to
the existence of clear and convincing evidence that the children
had been subjected to conditions sufficient to render them children
in need of aid under AS 47.10.011(2) [FN1] and (10)
and that the parents, at the time of trial, had
not remedied the conduct that placed the children at substantial
risk of harm. The superior court terminated the rights of
both parents. It found that the twins "have no ties
with either biological parent" and expressed strong skepticism about the
potential for either parent, particularly S.M., to become a sober
and mature caregiver in the foreseeable future. But it emphasized
that, even assuming the speediest possible recovery by the parents,
the resulting delay in permanent placement would be "too long
for the twins to wait." Because the twins urgently needed
stable family placement, the court determined that termination of parental
rights was in the best interests of the children. S.M.
and T.F. now appeal.
Under AS 47.10.011(2), the court may find a child to
be in need of aid if a
parent, guardian, or custodian is incarcerated, the other parent is
absent or has committed conduct or created conditions that cause
the child to be a child in need of aid
under this chapter, and the incarcerated parent has not made
adequate arrangements for the child.
Under AS 47.10.011(10), the court may find a child to
be in need of aid if
parent, guardian, or custodian's ability to parent has been substantially
impaired by the addictive or habitual use of an intoxicant,
and the addictive or habitual use of the intoxicant has
resulted in a substantial risk of harm to the child;
if a court has previously found that a child is
a child in need of aid under this paragraph, the
resumption of use of an intoxicant by a parent, guardian,
or custodian within one year after rehabilitation is prima facie
evidence that the ability to parent is substantially impaired and
the addictive or habitual use of the intoxicant has resulted
in a substantial risk of harm to the child as
described in this paragraph.
cases concerning the termination of parental rights, we will affirm the
trial court's factual findings unless the findings are clearly erroneous.
[FN3] Whether the factual findings are sufficient to satisfy the
Child In Need of Aid (CINA) rules is a question of law, to which we apply
our independent judgment.
A.A. v. State, Dep't of Family & Youth Servs.,
982 P.2d 256, 259 (Alaska 1999).
D.H. v. State,
929 P.2d 650, 654 n. 11 (Alaska 1996).
question of whether the State has complied with the Indian Child Welfare
Act's (ICWA's) "active efforts" requirement is a mixed question
of law and fact.
[FN5] The legal elements of this question, and any other purely
legal questions, are reviewed* de novo.
982 P.2d at 259.
order to terminate parental rights, a court must find by clear and convincing
evidence that the children are in need of aid under AS 47.10.011, and
that the parents have not remedied the conduct or conditions that place
the children at substantial risk of harm.
[FN7] The parties stipulated to these facts. Under ICWA,
the court may not terminate parental rights to Indian children unless
it finds by a preponderance of the evidence that "active efforts
have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts
have proved unsuccessful." [FN8]
In determining whether to terminate parental rights, "the court
shall consider the best interests of the child." [FN9]
25 U.S.C. § 1912(d)
The parental rights of both S.M. and T.F. were terminated
below, and both parents *1093
separately challenge the termination. We will consider their arguments in
Superior Court Did Not Err in Terminating S.M.'s Parental Rights.
argues that DFYS and the trial court did not allow her sufficient
time before the trial to prove her fitness as a parent. The
legal foundation of her argument is unclear.
S.M. maintains "[t]he law to be applied has no case
law or statutory law as an origin. One might say
that everybody involved stipulated to a law of the case
that was as yet undeclared in Alaska law." Although we
have reviewed the stipulations, it is unclear to us what
argument is being made. She cites no law in her
But as the State correctly argues, the AS 47.10.088 factors
for termination of parental rights govern and refute S.M.'s claim.
Under the statute, a court may terminate parental rights if
it finds by clear and convincing evidence that a parent
"has failed, within a reasonable time, to remedy the conduct
or conditions in the home that place the child in
substantial risk so that returning the child to the parent
would place the child at substantial risk of physical or
mental injury." [FN11]
For purposes of this determination, courts may consider any fact
relating to the best interests of the child, including:
The likelihood of returning the child to the parent within
a reasonable time based on the child's age or needs;
the amount of effort made by the parent to remedy
the conduct ...;
the likelihood that the harmful conduct will continue; and
the history of conduct by or conditions created by the
The superior court's decision is legally supported under all of
these factors. Termination of S.M.'s rights under factor (1) is
supported by the court's finding that "to put off [termination
of rights] or to provide [S.M. with] more time to
deal with [her] personal issues would be detrimental to the
welfare and best interest[s] of the children," because "[t]he children
need a permanent placement as soon as reasonably possible." Given
this finding, it appears not only unlikely but impossible that
the children could be "return [ed] ... to the parent
within a reasonable time based on [their] age or needs."
Following the superior court's findings, termination is also appropriate under
AS 47.10.088(b) factors (5), (4), and (2). The court noted
S.M.'s serious history of conduct that could be damaging to
a child--factor (5)--and the high likelihood that this conduct would
continue in the future--factor (4). It also found that "Ms.
[M.] made little effort to visit the twins since their
birth," but instead was "difficult for the social workers to
locate" and "continued to abuse drugs and pursue her nomadic
and chaotic lifestyle." Despite S.M.'s seemingly sincere efforts toward recovery
in the weeks before trial, in light of her forgone
opportunities to remedy her conduct in the preceding seven months,
the superior court did not err in concluding that the
"amount of effort made by the parent to remedy the
conduct" was insufficient under AS 47.10.088(b)(2). We therefore affirm termination
of S.M.'s parental rights.
Superior Court Did Not Err in Terminating T.F.'s Parental Rights.
T.F. argues that the superior court wrongly terminated his parental rights
because it erred both in finding that DFYS had made an active effort to
prevent family break-up and in finding that T.F.'s continued custody was
likely to damage the children. We are sympathetic to T.F.'s
position, given the short period of time in which his paternity was certain
and he was able to work on a case plan with DFYS.
We in no way condone DFYS's contribution to the delay
in paternity testing. However, we note that T.F. himself bears
substantial responsibility for the delay. DFYS filed a motion for
paternity testing within thirty days of the twins' birth; T.F.
did not respond to that motion. Instead, he absconded from
state custody before the test *1094
could be scheduled--an action which, despite the dissent's reference to
being "away without leave," [FN14]
probably constituted criminal escape or unlawful evasion under AS 11.56.300-.340.
When T.F. did return to custody, the DFYS worker assigned
to his case only learned of his return by reading
the police blotter; there is no indication that he sought
to contact DFYS.
Dissent at 1098.
If T.F. had not absconded from custody, or if he
had contacted DFYS during his almost three months of unauthorized
absence, testing could have been completed at a far earlier
date and DFYS's active efforts to reunify T.F. with his
children could have commenced further in advance of the scheduled
termination proceedings. As a result of T.F.'s untimely disappearance, however,
T.F.'s paternity was ascertained--and DFYS's active efforts obligation triggered--only six
weeks before termination proceedings.
One can imagine situations in which it would be unfair
to deny a biological father
a longer period of time to demonstrate his fitness as
a parent. The dissent argues that this is the case
on the facts now before us, and that given the
short period of reunification efforts DFYS cannot be considered to
have made unsuccessful active efforts to reunite T.F. and the
twins. But the rule apparently supported by the dissent would
allow putative fathers to avoid both testing and engagement with
their children until the eve of trial, then trigger a
new and potentially lengthy round of DFYS active efforts obligations
by confirming paternity. The resulting delay would not be in
the best interests of young children who need permanent placement.
On the facts of this case, given T.F.'s role in
postponing paternity testing, his incarceration and resulting unavailability to care
for the twins in their formative early years, and the
likelihood that he would not be able to provide a
stable home life to these special needs children even when
he is released from incarceration, such a delay would not
be justified. Given the particular facts of this case, we
find that the totality of the circumstances supports the superior
court's decision to terminate T.F.'s rights. We considered very similar
questions in A.A.
[FN15] our decision today in large part draws on our
decision in that case.
982 P.2d 256 (Alaska 1999).
made active efforts to prevent the family's breakup.
ICWA, a court may only terminate parental rights if it finds by a preponderance
of the evidence that "active efforts have been made to provide remedial
services and rehabilitative programs designed to prevent the breakup of
the Indian family and that these efforts have proved unsuccessful."
T.F. argues that the superior court erred in finding that DFYS met
the active efforts requirement.
25 U.S.C. § 1912(d)
also N.A. v. State,
19 P.3d 597, 602 (Alaska 2001).
T.F. also claims that "[t]he court made no findings at
all as to what efforts had been made to prevent
the breakup of the family in this case." The record
does not support this claim. The superior court found that
"[t]he State has made reasonable and active efforts to work
with both parents to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family...." It
specifically noted that DFYS contacted S.M. in the hospital, scheduled
visitation with both parents, and arranged for two paternity tests,
and that the State enrolled S.M. in a drug treatment
program. Although the court does not in its findings discuss
T.F.'s classes in jail, the court heard testimony about his
enrollment and concluded that there was little more that DFYS
could reasonably have done while T.F. was in jail.
The degree of active efforts required of DFYS is reduced
by two factors: the initial uncertainty of T.F.'s paternity and
T.F.'s incarceration. The superior court recognized these factors, finding that
"given Mr. [F.]'s incarceration and his initial concern about his
paternity, there was little more the Department could have reasonably
provided Mr. [F.] beyond that which was available in the
ICWA rules and our decision in A.A.
v. State, the State
did not owe T.F. active efforts until paternity was established. *1095
we affirmed the termination of a biological father's parental rights.
[FN19] In that case, the father had denied paternity and requested
a blood test.
[FN20] DFYS initiated termination proceedings before the test was
[FN21] and never developed a case plan for the father.
[FN22] Our decision drew on the statutory language of ICWA, which
explicitly defines the parents protected by the statute as "not includ
[ing] the unwed father where paternity has not been acknowledged or established."
We concluded that "because A.A. did not acknowledge paternity
before the blood test, ICWA did not obligate the State to provide [active]
efforts until A.A.'s paternity had been established." [FN24]
982 P.2d 256 (Alaska 1999).
at 261-62; 25 U.S.C. § 1903(9).
982 P.2d at 262.
Like A.A., T.F. did not acknowledge paternity prior to his
blood test. Following A.A.,
DFYS therefore had no duty to undertake active efforts during
the time between the birth of the twins and the
February 28 determination of paternity.
The dissent argues that T.F.'s failure to appear for paternity
testing cannot have
"discharged the State from its duty to take further active
family unification efforts." [FN25]
But until paternity was established, the State had
no active efforts duty. In A.A.,
we answered in the negative the question "whether DFYS's delay
in determining paternity can violate the 'active efforts' requirement"; the
dissent offers no grounds for departing from this precedent. Moreover,
T.F. was passive at best, and resistant at worst, in
the face of DFYS's attempt to determine paternity. His actions
were a major cause of delay in completing the tests.
As the superior court noted:
Dissent at 1099.
is true that paternity testing could have been expedited once
Mr. [F.] was back in custody and Mr. [F.]'s case
plan and visitation at the jail [could have] started earlier.
However, had Mr. [F.] not been on abscond status, the
entire issue could have been resolved earlier.
The dissent further suggests that DFYS's and the superior court's
choice to proceed with termination proceedings in the face of
T.F.'s non-cooperation was a " 'one strike and you're out'
approach to reunification services." [FN26]
The analogy to criminal law is misplaced; adherence to A.A.'s
rule regarding paternity testing is not a punitive measure against
T.F. Rather, it is driven by the policy of protecting
children in need of aid. The superior
court appropriately determined that "custody by either [parent] is likely
to result in serious emotional or physical damage to the
children" and that further instability and delay in finding a
permanent home would be "detrimental to the welfare and best
interest[s] of the children."
Dissent at 1099.
incarceration and subsequent absconding status
Once DFYS determined that T.F. was the father, its active
efforts duties were triggered.
[FN27] Even then, however, the scope of the State's duties
was reduced by T.F.'s incarceration. Because of this reduction, DFYS's
efforts in the weeks after the confirmation of T.F.'s paternity
met the active efforts requirement.
982 P.2d at 262.
The superior court found that "The State has made reasonable
and active efforts to work with both parents to provide
remedial services and rehabilitative programs designed to prevent the breakup
of the Indian family...." Efforts made with respect to T.F.
included scheduling two paternity tests, attempting to contact him through
S.M., a letter to his last
known address, and a fax to his previous attorney while
T.F. was on abscond status, conducting three visitations between T.F.
and the twins, contacting his probation officer to ensure that
he was enrolled in the appropriate classes in jail, and
meeting with him once before the paternity test and once
after to discuss his case-although a formal case plan for
T.F. was not finalized until the second meeting, on March
We held in A.A.
that "[a] parent's incarceration significantly affects the scope of the
active efforts that the State must make." [FN29]
While incarceration does not relieve the State of its duties,
the practical circumstances of incarceration may reduce the possible options
available to the State.
[FN30] Moreover, because ICWA requires the State,
rather than a particular agency, to make "active efforts ...
to provide remedial services and rehabilitative programs," [FN31]
we have held that the Department of Corrections, rather than
DFYS, may fulfill this obligation by enrolling the parent in
classes and treatment programs [FN32]--as
the Department of Corrections did in this case. Given this
standard, the State's efforts were sufficient.
id.; see also In re Riva M.,
235 Cal.App.3d 403, 413-14, 286 Cal.Rptr. 592 (1991) (terminating father's
rights in ICWA case based in part on his incarceration
and rejecting a claim that the state failed to meet
the active efforts requirement, noting that "it is nonsense to
argue Lorenzo was not offered adequate reunification services" despite fact
that during period of incarceration he was "not made a
major part" of the reunification plan).
25 U.S.C. § 1912(d).
A.M. v. State,
945 P.2d 296, 305 (Alaska 1997); see
982 P.2d at 263.
the totality of circumstances in this case, the superior court
did not err in determining that custody in the father
would be likely to damage the twins.
T.F. argues that the superior court erred in finding that
continued custody by T.F. is likely to cause serious emotional
or physical damage to the children. Because of the delay
in placement, T.F.'s incarceration, and other factors, we conclude that
the superior court did not err in finding that continued
custody by T.F. is likely to cause the children serious
emotional harm or physical damage.
The superior court's decision to terminate depended in part on
its finding that delay in permanent placement would harm the
twins. Although T.F. challenges the evidentiary sufficiency of this finding,
it was supported by expert testimony before the superior court.
Alaska Statute 47.10.080(o)
provides that a parent's incarceration may support termination of parental
rights if the court finds, based on clear and convincing
the period of incarceration that the parent is scheduled to
serve during the child's minority is significant considering the child's
age and the child's need for an adult's care and
there is not another parent willing and able to care
for the child; and
the incarcerated parent has failed to make adequate provisions for
care of the child during the period of incarceration that
will be during the child's minority.
The superior court found each of the statutory factors: It
found that the delay caused by T.F.'s incarceration was significant
"considering the children's age and their current needs"; it found
that the children's mother was currently unable to care for
them; and it found that "Mr. [F.] has not taken
steps to have alternative care provided for the children during
his period of unavailability...." T.F. does not discuss the statute
or dispute its applicability
in his appeal to this court.
In this case, numerous factors combine with the concern about
parental incarceration and placement delay to convince us that termination
was appropriate. First, the superior court found that T.F. had
a high relapse potential; such potential diminishes the likelihood that
T.F. could be a stable custodian for his children after
his release from incarceration. Second, the twins are children with
special needs, with a particularly great need for attentive and
capable parenting. Third, T.F. already has another child but has
been unable to care for her "due to [his] addiction[
] and lifestyle[ ]." Finally, T.F.'s interest in the twins
was contingent on confirmation that he was the father, but
this interest was weak enough that T.F. chose to abscond
from custody rather than participating in paternity testing. T.F.'s own
actions prevented him from determining paternity and assuming any active
interest in the twins *1097
until they were over seven months old. Given these facts,
in conjunction with the instability which T.F.'s incarceration would bring
to these young children, we conclude that the superior court
did not err in terminating T.F.'s parental rights.
Because termination of S.M.'s parental rights is squarely supported by
the governing statute, we AFFIRM the termination of her rights.
In light of the totality of the circumstances, we also
AFFIRM the termination of T.F.'s rights.
Our ruling is narrowly based on the facts of this
MATTHEWS, Justice, with whom BRYNER, Justice, joins, dissenting.
The trial court did not find that active efforts to
preserve T.F.'s family relationship with the children had proved to
be unsuccessful. Further, if such a finding had been made,
it would not have been supported by the record. Because
subsection 1912(d) of ICWA requires a showing that active efforts
"have proved unsuccessful," and as to T.F. such a showing
was neither found nor made, I dissent.
The State's ICWA-imposed duty to provide active family-saving efforts to
T.F. was not triggered until February 29, 2000. At that
point a paternity test demonstrated that he was the father
of the children. When the test results were received the
termination trial was scheduled to take place in six weeks.
That schedule was never altered. What active efforts did the
State make with respect to T.F.?
What DFYS did was to formulate a case plan and
arrange three visits between T.F. and the children. The case
plan itself does not qualify as a family uniting effort
because the stated objective of the plan was adoption. The
three visits were initiated by T.F. When he called the
DFYS social worker to request
the visits she attempted to dissuade him. Ultimately, however, she
relented and the visits took place. T.F. also availed himself
of a number of prison-operated programs. These included a parenting
class, a class on fetal alcohol consequences, substance abuse treatment,
and group therapy sessions. These programs can be considered active
efforts that might satisfy ICWA. [FN1]
A.M. v. State,
945 P.2d 296, 305 (Alaska 1997).
The prison programs and the three visits arranged by DFYS
were a good start toward compliance with ICWA's active efforts
requirement. But they had no real chance of success at
uniting T.F. with his children because they were cut short
by the termination decree.
As noted, ICWA requires that before there can be a
termination of parental rights the active efforts that have been
made must prove to be unsuccessful. [FN2]
The trial court made no finding as to T.F. that
the efforts had proved unsuccessful. The closest the court came
was to find that "the department ... did not receive
cooperation from the parties." The lack of cooperation finding was
directed only at T.F.'s failure to take the paternity test
scheduled for October 13. The court did not find that
T.F. was uncooperative
with respect to any of the efforts that were taken
after the test established his paternity. More to the point,
for ICWA purposes, the court did not find that any
of these efforts had proved unsuccessful. If these efforts are
to be counted as meeting the "active efforts" requirement of
subsection 1912(d) of ICWA, they must ultimately be unsuccessful.
25 U.S.C. § 1912(d)
party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall 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.
My reading of the record indicates that once T.F.'s paternity
was established he showed no lack of willingness to participate
in the prison rehabilitation programs and took the initiative to
arrange visits with his children. The record does not show
that the visits or T.F.'s participation in the prisoner programs
we addressed the burden of proof required under subsection 1912(d),
holding that the State was required to show by a
preponderance of the evidence
that it had made active efforts to prevent the breakup
of the family and that those efforts had been unsuccessful.
[FN3] In that case, we approved as active and unsuccessful
the State's efforts to provide services to the father, finding
that his refusal to work with DFYS, his denial of
his mental problems, and his recalcitrant attitude toward treatment demonstrated
that the State's efforts had been unsuccessful.
[FN4] The present case does not present analogous facts, as
there was no showing regarding the failure of the State's
efforts with regard to T.F. Other states interpreting ICWA have
required an affirmative showing by the state that its efforts
have been unsuccessful.
856 P.2d 468, 476 (Alaska 1993).
e.g., State ex rel. Juvenile Dep't of Multnomah County v.
70 Or.App. 10, 688 P.2d 1354, 1359 (1984) ("the state
must show that the efforts have been made but have
not worked"); In
re Dependency of A.M.,
106 Wash.App. 123, 22 P.3d 828, 834 (Wa.App.2001) ("failure [of
state efforts] must be shown before parental rights to an
Indian child may be
Interest of M.S.,
624 N.W.2d 678, 684 (N.D.2001) (affirming termination order where active
efforts to provide remedial services and rehabilitative programs were undertaken
and proved unsuccessful); In
re E.M, A.M., and J.M.,
466 N.W.2d 168, 173-74 (S.D.1991) (finding § 1912(d)
satisfied where court made detailed findings regarding provision of services
and failure by parent).
In 1998 the legislature mandated strict and short time schedules
for filing termination petitions and holding termination trials.
[FN6] Acting in response to this new mandate, DFYS and
the trial court put this termination proceeding on a fast
track. After T.F. was determined to be the father of
the children, the active efforts to unite him with his
children were unsuccessful because they were necessarily ended by the
termination decree. But under ICWA lack of success is a
precondition to termination. Termination cannot serve as the reason why
active efforts fail to succeed. It should go without saying
based on the supremacy clause of the federal constitution [FN7]
that the requirements of ICWA must be observed even if
that means some slippage in the state statutory scheduling requirements.
U.S. Const. art. VI.
The main point of this dissent is that since subsection
1912(d) of ICWA imposes a duty to take active reuniting
efforts and provides that those active efforts that satisfy this
duty must have proved unsuccessful, this means that time must
be allowed for active reuniting efforts to either fail or
succeed. Reuniting efforts, such as the Department of Corrections programs
in this case, that have not been given sufficient time
to fail or succeed do not satisfy subsection 1912(d). In
this case the only active reuniting effort that failed was
distinctly preliminary in character; it was the effort to set
up a paternity test for T.F. that was scheduled to
take place on October 13, 1999. As of that date
T.F. was away without leave from the halfway house where
he was incarcerated and thus missed the test. Since this
is the only active effort that proved unsuccessful, the real
issue in this case is whether T.F.'s failure to show
up for the October 13 test discharged the State from
any further duty to take active efforts to unite T.F.
with his children.
My view on this question is that under the circumstances
of this case T.F.'s failure to take the test on
October 13 did not discharge the State from its duty
to take further active efforts under subsection 1912(d). The time
frame of the events in this case is very compressed.
The children were born on July 22, 1999, and within
nine months thereafter the parental rights of both parents were
terminated. The State delayed in arranging paternity tests before the
October 13 date. Further, although T.F. was AWOL on October
13, he was back in custody as of November 7,
[FN8] yet the State delayed for another seven weeks in
taking a saliva sample *1099
from him for DNA testing purposes. Overall, it appears that
T.F.'s AWOL directly caused a three-week delay, whereas the State
bears the responsibility for failing to take a saliva sample
earlier, and a heavy share of the responsibility for the
delay after November 7 until December 28, when T.F.'s saliva
was finally taken.
Far from being the "eve of trial," see
Slip Op. at 1094, the Petition for Termination of Parental
Rights was not even filed at this point.
The underlying idea of subsection 1912(d) is that troubled and
situationally unfit parents should receive rehabilitative services so that they
may be able to fulfill traditional parental roles. In the
process of receiving rehabilitative services some false starts and setbacks
are to be expected. Treating
one missed appointment for testing as a discharge of subsection
1912(d)'s active efforts duty seems inconsistent with the remedial purposes
of subsection 1912(d). I do not believe that a "one
strike and you're out" approach to reunification services is what
Congress had in mind in enacting ICWA. Thus I do
not believe that the missed October appointment can be said
to have discharged the State from its duty to take
further active family unification efforts. And since, as noted above,
those further efforts that were taken did not prove unsuccessful,
the requirements of subsection 1912(d) of ICWA, in my view,
have not been satisfied.
For the above reasons I would reverse the termination decree
as to T.F. and remand for further proceedings so that
the requirements of subsection 1912(d) of ICWA can be satisfied.
26 P.3d 1089