Philip J. v. State, Department of Health & Social Services, Office of Children's Services, 2013 Alas. LEXIS 164

Background

Philip and Georgina J., parents of nine children who are members of the Asa’carsarmiut Tribe, had longstanding involvement with Alaska OCS from 2004–2012 for domestic violence, substance abuse, neglect, and allegations of sexual abuse; ICWA applies.
Multiple incidents (rifle fired in home, repeated assaults while intoxicated, sexual-assault allegations, and serious 2010 assault on Georgina causing broken arms) produced repeated OCS investigations, tribal protective orders, criminal convictions, and removals.
The seven oldest children were adjudicated CINA in February 2011; OCS removed those seven in April 2010 and terminated parental rights in June 2012.
Alyssa (born March 2011) was removed soon after birth due to unmitigated safety threats and adjudicated a CINA; parental rights termination as to Alyssa was ordered November 14, 2012.
OCS provided repeated referrals, arranged assessments (including Dr. Bruce Smith), transportation, supervised visitation, and case planning over several years; the court found parents largely refused or failed to complete recommended assessments and treatment.
The superior court found OCS made the active efforts required by ICWA but that those efforts failed because of parental refusal; Philip appealed two consolidated termination orders asserting inadequate active efforts and contesting Alyssa’s CINA finding.

Issues

Issue	Philip's Argument	State's Argument	Held
Whether OCS made the "active efforts" required by ICWA for the seven oldest children	OCS did not make sufficiently specific or continuous efforts (insufficient referrals, no court orders to compel evaluations, passive handling by some social workers)	OCS made active, case-wide efforts over years (assessments scheduled, referrals, transport, visitation, case plans); parental refusal made further efforts futile	Affirmed — court did not err; OCS made active efforts and parents repeatedly refused to engage
Whether OCS made active efforts with respect to Alyssa	OCS failed to provide particular services/referrals and stopped active efforts after assessments	OCS’s efforts for Alyssa properly included the long history of services given the family; social worker efforts were credible and substantial	Affirmed — OCS made active efforts for Alyssa; parent uncooperative
Whether Alyssa is a child in need of aid under AS 47.10.011	Removal was premature: no actual harm during Alyssa’s life; concerns were speculative	Statute allows intervention to prevent future harm; Philip’s history of domestic violence and substance abuse created substantial risk	Affirmed — clear and convincing evidence Alyssa was CINA based on domestic violence and substance abuse risk
Whether OCS must seek court orders to compel evaluations/treatment to satisfy active efforts	OCS should have sought court orders to force assessments/treatment	Requiring court orders for every uncooperative parent would be burdensome and is not required; active efforts assessed holistically; court orders may be futile if parent resists	Affirmed — OCS not required to seek court orders; absence of order did not defeat active efforts finding

Key Cases Cited

Pravat P. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 249 P.3d 264 (Alaska 2011) (standard and review for active efforts under ICWA)
Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 244 P.3d 1099 (Alaska 2010) (parental unwillingness to engage may be considered in active-efforts analysis)
Maisy W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 175 P.3d 1263 (Alaska 2008) (look to state’s involvement in its entirety for active efforts)
Wilson W. v. State, Office of Children’s Servs., 185 P.3d 94 (Alaska 2008) (courts need not require OCS to seek orders for every uncooperative parent)
Jon S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 212 P.3d 756 (Alaska 2009) (active efforts may include DOC programs and parole efforts)
Martin N. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50 (Alaska 2003) (past domestic violence can support finding of present substantial risk)
A.A. v. State, Dep’t of Family & Youth Servs., 982 P.2d 256 (Alaska 1999) (parental refusal to engage can justify limited further state efforts)
Sherman B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 290 P.3d 421 (Alaska 2012) (standards for review in CINA/termination context)