Jon S. v. State, Department of Health & Social Services, Office of Children's Services

CHRISTEN, Justice,

dissenting in part.

I agree with the court in all but one respect. In my view, OCS failed to make active efforts in this case.

Congress identified two policy goals in enacting ICWA: "to protect the best interests *768 of Indian children and to promote the stability and security of Indian tribes and families." 1 Our legislature and this court have recognized that permanency is in children's best interests. 2 But our case law allows "active efforts" to be measured over the entirety of a case, without regard to how long it takes to achieve permanency. 3 Our legislature has expressly recognized that delays in these cases can further victimize children and that multiple or prolonged placements can cause emotional harm. 4 Measuring OCS's active efforts over the entirety of a case, without regard for the impact of delays attributable to OCS, threatens to lower the "active efforts" standard and permits unnee-essary-and harmful-delays in achieving permanency. In this case, the record shows that OCS's actions significantly lengthened the time it took to achieve permanency for Melissa, that these actions were inadequately explained, and that the resulting . delays harmed Melissa and reduced her chances of reunifying with Jon or his extended family. I therefore respectfully dissent from the court's active efforts analysis.

I. VIEWING THE ENTIRETY OF THE STATE'S EFFORTS WITHOUT REGARD FOR THE IMPACT OF DELAYS ATTRIBUTABLE TO OCS IMPERMISSIBLY LOWERS THE ACTIVE EFFORTS STANDARD.

Congress did not require that reviewing courts consider the entirety of the state's involvement in a case to determine whether active efforts have been made; our court adopted this approach by looking to case law from other jurisdictions. 5 Initially, our court applied this approach under relatively narrow cireumstances, where three identified conditions existed: (1) efforts had been made to address a substance abuse problem, (2) the parent had shown no willingness to change, and (8) parental rights had been terminated as to another child. 6 This court began applying this approach when the burden of proof was preponderance of the evidence, 7 but it has continued to apply it in recent cases, without discussion, even though the law now provides that active efforts must be demonstrated by clear and convincing evidence to terminate parental rights. 8 And the *769 application of this rule has expanded. In two recent cases our court looked to the entirety of the state's efforts to conclude the active efforts burden was met without considering whether the three conditions existed, focusing instead on the lengths of the time periods of active and passive efforts and on the degree to which the parent showed willingness or ability to change. 9

Although our case law has evolved to take a more expansive view of the active efforts requirement, our legislature was unequivocal in identifying how delays in resolving child-in-need-of-aid cases can harm children. The legislative findings, set forth in AS 47.05.065, provide, in relevant part:

The legislature finds that

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(5) numerous studies establish that

(A) children undergo a critical attachment process before the time they reach six years of age;

(B) a child who has not attached with an adult caregiver during this critical stage will suffer significant emotional damage that frequently leads to chronic psychological problems and antisocial behavior when the child reaches adolescence and adulthood; and

(C) it is important to provide for an expedited placement procedure to ensure that all children, especially those under the age of six years, who have been removed from their homes are placed in permanent homes expeditiously.

I question the trajectory of our case law and believe the sequential approval of orders terminating parental rights in cases where significant delays attributable to OCS go unexplained may inadvertently undercut ICWA's important legislative goals and effectively lower the active efforts standard.

II. AVOIDABLE, INADEQUATELY EXPLAINED, AND HARMFUL DELAYS ATTRIBUTABLE TO OCS ARE NOT CONSISTENT WITH ACTIVE EFFORTS.

OCS faces the difficult job of balancing efforts to reunify families with efforts to protect children's best interests." 10 There are no readily available "cures" for many of the problems that prompt OCS to assume emer-geney custody of children, such as long-term addictions. For this reason, some delays in resolving child-in-need-of-aid cases are inevitable. But unnecessary delays attributable to OCS that substantially reduce the chances for successful reunification or lengthen the time it takes to achieve permanency are not consistent with "active efforts."

The court's opinion lists steps taken by OCS in this case, but in my judgment whether "active efforts" were made should be a qualitative, not quantitative, question. Meeting the "active efforts" burden should require that OCS's efforts increase the likelihood that families will be reunified, or at least reduce the amount of time it takes to determine whether reunification will be possible. Where reunification is possible, a child's best interests are served by helping to reunify the family without the risk of harm from extended or multiple out-of-home placements. Where reunification is not possible, the child's best interests are served by initiating termination proceedings without avoidable delay.

The facts of Melissa's case lead me to conclude that OCS did not meet its active efforts burden because of three critical failures: (1) OCS failed to obtain paternity test results in the early stages of the case; (2) OCS did not train its caseworker on how to locate and communicate with Jon while he was in state prison; and (8) OCS failed to train its caseworker on how to interpret and apply ICWA's placement preferences, resulting in the caseworker waiting to pursue placement with paternal relatives until several months after the mother asked to relin *770 quish her parental rights. In my judgment, these delays were attributable to OCS, avoidable, inadequately explained, and harmful to Melissa and her chances for reunification.

A. The Failure To Obtain Paternity Test Results in a Timely Manner in the Early Stages of the Case Was Attributable to OCS, Inadequately Explained, and Harmful.

One factor the court cites in support of its conclusion that OCS made active efforts is that the caseworker arranged for paternity testing. 11 But the testing did not help Melissa achieve permanency; testing results were needed. Jon needed the test results to qualify for the financial assistance that could have better positioned him to find housing and employment earlier in the case. This assistance could have permitted OCS to determine, at an earlier point, whether he was likely to be able to successfully parent Melissa.

Jon submitted to a paternity test by fall 2005, 12 but OCS did not receive the results until sometime between December 2005 and March 2006. The results were not obtained earlier because the OCS caseworker did not know how to obtain them. The caseworker testified she "called the Bureau of Vital Statistics five or six times and left a message," and that it was not until she called OCS Anchorage in December 2005 or January 2006 that she learned that LabCorp does the testing. She then called LabCorp and received the results "within two weeks." Arranging for paternity testing, without knowing how to get paternity test results, is inconsistent with "active efforts."

Although OCS asked that Jon and Melissa receive priority consideration for financial assistance in light of the delayed paternity results, this assistance was denied. By March 2006, Jon still had not been approved for financial assistance. OCS's failure to obtain the test results promptly contributed to delays in achieving permanency for Melissa and in reducing the likelihood of successful reunification; this failure was attributable to OCS, not adequately explained, and harmful to Melissa.

B. OCS's Failure To Train Its Caseworker on How To Locate and Communicate with Jon While He Was in State Prison Was Unexplained and Harmful.

The second OCS social worker assigned to this case did not know how to locate and contact a parent in state custody. She testified she contacted Jon in state prison just once between April and August 2006, that this contact did not occur until July 2006, and that she did not contact Jon earlier because she did not know how to find or communicate with someone in state custody. In fact, she testified that she did not receive any guidance on how to communicate with state inmates, that this case was "a communication nightmare," and that she had not heard of the VINE-line for locating inmates or the Evercom phone system for calling and receiving calls from inmates. The caseworker also testified that when she took over the Seward OCS office, which had been "handled by transient social workers coming in and out of the office" and "hadn't been manned" for seven months, she received just "two weeks of training."

OCS undoubtedly faces geographic and budgetary challenges, but if it is to meet its active efforts burden, it must ensure that caseworkers receive adequate training, supervision, and access to resources. The near lack of communication with Jon while he was in prison for four months in 2006 inhibited his ability to make progress on his case plan and delayed OCS's ability to determine whether he was a likely candidate for reunification. 13

The record shows that Melissa's lack of contact with Jon during this four-month in- *771 carceeration was damaging. Jon's caseworker testified that Melissa was "happy" and "well attended to" before the March 2006 predisposition hearing, and in its pre-disposition report OCS described Jon and Melissa as having "healthy bonds of trust and affection." Melissa was only eighteen months old when Jon was incarcerated in 2006. OCS knew that she was well-bonded to Jon and that she could not be placed with Mae while Jon was in jail. Yet OCS did not arrange any visits between Melissa and Jon during this four-month period of incarceration. By August 2006, when Melissa had been out of contact with Jon for four months and when OCS placed her in her current foster home, she was exhibiting severe attachment disorder symptoms, including suffering serious constipation that required medication, engaging in self-injurious behavior (biting her cheeks and cutting her gums), hiding food in her cheeks, holding her breath, exhibiting social withdrawal and hypersensitivity to touch, whispering, having anxiety and trouble sleeping, using little emotional expression or reaction, and showing expressive language delays. OCS's inaction while Jon was incarcerated in 2006 was neither consistent with "active efforts" nor with ICWA's policy goal of protecting the Indian child's best interests. 14

C. The Failure To Follow Statutory Placement Preferences and the Delay in Exploring Placement With Paternal Relatives Were Attributable to OCS, Inadequately Explained, and Harmful.

The record and testimony contain substantial evidence showing that OCS failed to train its social worker on placement preferences and that this failure caused an impermissible delay in pursuing a family placement per ICWA's placement preferences. 15 The record reveals that OCS considered Mac, Mae's mother's family, and a non-relative Alaska Native family as preferential placements over Jon or his non-Native family. 16

For nearly two years, from June 2005 (when OCS took Melissa into emergency custody) until April 2007 (after Mae asked to relinquish her parental rights), OCS identified reunification with Mae as the permanent goal. Reunification with Mae remained the goal though Mae was in and out of treatment and jail and was out of contact with OCS for extended periods of time. Indeed, in July 2006 OCS expressed concern about pursuing placement with Jon's relatives in Washington because that would "make reunification more difficult{ ] when the mother resurfaces," though by this time Mae had been out of contact with OCS for around four months. Placement with Mae remained the goal even after she expressly refused to work on her case plan in fall 2006. This persistent focus on Mae is especially concerning because it caused OCS to delay researching a family placement with one of Jon's relatives, though OCS knew Mae had an ongoing and long-term addiction, had not successfully worked her case plans with her previous children, and was not likely to succeed with Melissa.

OCS did not fill out an ICPC packet for placement with Jon's family until September 2007. This was a year and a half after Jon gave OCS information about his family, and a year and a half after the guardian ad litem recommended an ICPC packet be prepared for Jon's parents in Washington. It was also a year after Mae asked OCS to contact Jon's family for placement, seven months after Mae asked to relinquish her parental rights, and three months after her parental rights were terminated. Although the record reveals that one of Jon's siblings discouraged OCS from placing Melissa with Jon's elderly parents, onee OCS contacted Jon's other siblings, it discovered that at least two were interested in placement. In fact, Jon's brother was preliminarily approved, but because he moved to another state during the placement review due to a job transfer, the *772 placement was denied. The result may have differed had Jon's brother been contacted earlier in the case.

The delay in attempting to make contact with Jon's family and in filling out an ICPC packet for placement with his family resulted from OCS's failure to train its caseworker on ICWA's placement preferences. It is concerning that the testimony before the trial court revealed confusion within OCS about ICWA's preference for placement with a biological parent or that parent's extended family in instances where that preference order results in placement with family that is not Native. 17

The caseworker's unfamiliarity with ICWA's placement preferences and OCS's delay in considering a permanent placement with Jon's family contributed to the length of time it took to achieve permanency for Melissa. The delay in achieving permanency caused harm to Melissa; while waiting for a permanent home, she went through three placements and developed an attachment disorder. The confusion over ICWA's placement preferences and the delay in pursuing placement with Jon's family resulted in a failure to make active efforts to prevent the breakup of the Indian family.

III. CONCLUSION

Melissa has made important gains in her current foster home, and I agree with the court that she will benefit by remaining there. But in my judgment, the conclusion that OCS met its active efforts burden cannot be reconciled with the avoidable, inadequately explained, and harmful delays described above. For these reasons, I respectfully dissent from the court's "active efforts" analysis.

. 25 U.S.C. § 1902 (2006); see also A.B.M. v. M.H., 651 P.2d 1170, 1172 (Alaska 1982) (citing H.R.Rep. No. 95-1386, at 8 (1978) (stating the same), as reprinted in 1978 U.S.C.C.A.N. 7530, 7530). ICWA's requirements apply to non-Indian biological parents of Indian children. See In re Adoption of T.N.F., 781 P.2d 973, 978 (Alaska 1989).

. Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 55-56 (Alaska 2003) (identifying risk of harm resulting from disruptions in a young child's "critical attachment process" and emphasizing need to achieve permanency "expeditiously" to avoid this risk (quoting AS 47.05.065(5))); see also Debbie G. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 132 P.3d 1168, 1170-71 (Alaska 2006) (stressing the need to achieve a permanent placement to avoid multiple temporary placements).

. See Roland L. v. State, Office of Children's Servs., 206 P.3d 453, 456-58 (Alaska 2009); Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1268-69 (Alaska 2008); E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 990 (Alaska 2002); N.A. v. State, DFYS, 19 P.3d 597, 599, 603 (Alaska 2001).

. AS 47.05.065(5).

. See 25 U.S.C. § 1912 (d) (2006); N.A., 19 P.3d at 603-04 (establishing approach of looking to entirety of case and citing Letitia V. v. Super. Ct., 81 Cal.App.4th 1009 , 97 Cal.Rptr.2d 303, 308-09 (2000); In re A.R.P., 519 N.W.2d 56, 60 (S.D.1994)).

. See N.A., 19 P.3d at 603-04 ("Other courts have expressly held that where efforts have been made to address a substance abuse problem, the parent has shown no desire to change, and parental rights were terminated with respect to one child, ICWA allows the superior court to consider all of the efforts made by the state to avoid the breakup of the family in assessing whether those efforts were reasonable." (citing Letitia V., 97 Cal.Rptr.2d at 308-09 ; In re A.R.P., 519 N.W.2d at 60 ));" see also E.A., 46 P.3d at 991 (same) (citing N.A., 19 P.3d at 603-04 ).

. See E.A., 46 P.3d at 989-90 ; N.A., 19 P.3d at 602 .

. See CINA Rule 18(c)(2)(B) & note; ch. 20, § 1-2, 8, SLA 2006 (heightening burden of proof); Roland L., 206 P.3d at 456 (applying clear and convincing burden of proof and relying on Maisy W., 175 P.3d at 1268-69 , and E.A., 46 P.3d at 990 , to look to entirety of OCS's involvement); Maisy W., 175 P.3d at 1268-69 (applying clear and convincing burden of proof and relying on E.A., 46 P.3d at 990 , and N.A., 19 P.3d at 599, 603 , to look to entirety of OCS's involvement).

. See, e.g., Roland L., 206 P.3d at 456-57 ; Maisy W., 175 P.3d at 1269 .

. See 25 U.S.C. § 1902 (2006) ("The Congress hereby declares that it is the policy of this [nJation to protect the best interests of Indian children. ...").

. Op. at 764.

. The record does not indicate the exact date when Jon took the paternity test, but the record suggests he took the test before late October.

. The court's opinion correctly notes that the trial court did not find Jon's claims that he tried to contact OCS while he was in prison credible. Op. at 762 n. 16. But OCS had an obligation to contact Jon:; this is an ICWA case and OCS is obliged to use active, not passive, efforts.

. 25 U.S.C. § 1902 (2006).

. See 25 U.S.C. § 1915 (a) (2006) (preferring extended family over non-family Native homes); id. § 1903(2) (defining extended family); In re Adoption of Sara J., 123 P.3d 1017 , 1021 n. 14 (Alaska 2005) ("[IJf one parent is Native and the other is not, the Indian child's extended family may include non-Native members who might argue for preferred placement status under ICWA.").

. Jon is African-American.

. See 25 U.S.C. § 1915 (a) (2006) (preferring extended family over non-family Native homes); id. § 1903(2) (defining extended family); In re Adoption of Sara J., 123 P.3d at 1021 n. 14.