480 P.3d 598
Alaska2021Background
- Five Indian children were removed in 2018 after medical neglect (serious MRSA infections, untreated wounds), drug exposure in children, poor hygiene, and domestic violence; mother Astrid later died (2019).
- OCS took custody, placed siblings together eventually, and developed a case plan for father Walker requiring substance assessment/treatment, random UAs, domestic-violence intervention, parenting services, and supervised visitation.
- Walker engaged primarily in visitation (inconsistent) but failed to complete assessments, attend treatment or UAs (multiple no-shows; two tests positive for controlled substances); OCS offered referrals, transportation options, and outreach including contact with the Knik Tribe.
- Visits were suspended at times for MRSA safety and during a murder investigation after Astrid’s death; OCS acknowledged two limited periods when it did not make active efforts.
- At a three-day trial OCS presented Karen Morrison (MSW, 17 years OCS experience, ANFS supervisor) as an ICWA expert; she testified continued custody by Walker would likely cause serious emotional or physical harm. The superior court terminated Walker’s parental rights; he appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did OCS make the "active efforts" required by ICWA to reunify? | OCS merely drafted a case plan and left Walker to satisfy it; it failed to help develop resources or meaningfully assist. | OCS made affirmative, reasonable efforts overall: referrals, repeated encouragement, assistance with IDs for UA, transportation offers, tribal outreach, and maintained contact. | Court: OCS satisfied ICWA active-efforts when its efforts are viewed in their entirety despite limited lapses. |
| Was OCS’s expert (Karen Morrison) qualified under ICWA’s heightened standard? | Morrison lacked child counseling/diagnostic experience and thus was not an ICWA-qualified expert to opine on likelihood of harm. | Morrison had MSW licensure, 17 years OCS experience including supervising Alaska Native Family Services, ICWA training, and prior qualification in ICWA cases. | Court: No plain error; Morrison’s education, experience, and training supported qualification under ICWA. |
| Did the evidence (beyond a reasonable doubt) show continued custody by Walker likely to result in serious emotional or physical damage? | OCS failed to establish causal link between present conditions and likelihood of serious harm; expert testimony was insufficient. | Expert testimony plus evidence of medical neglect, substance use, domestic violence, and Walker’s failure to remediate supported the required finding beyond a reasonable doubt. | Court: Evidence (including Morrison’s testimony and case facts) met the beyond-a-reasonable-doubt standard. |
| Was termination inappropriate because the court failed to discuss the children’s Native heritage or mother’s death in the best-interests analysis? | Court ignored children’s interest in Native connections and Astrid’s death, contrary to ICWA purposes. | ICWA’s placement preference governs placement choices, not the statutory best-interests test; the court may weigh many factors and properly considered statutory factors and totality of circumstances. | Court: No error; best-interests finding (based on statutory factors and likelihood of continued harm) was not defective. |
Key Cases Cited
- Eva H. v. State, Dep’t of Health & Social Services, Office of Children’s Servs., 436 P.3d 1050 (Alaska 2019) (standards for active efforts, expert qualification, and review)
- Marcia V. v. State, Office of Children’s Servs., 201 P.3d 496 (Alaska 2009) (plain-error review of expert qualification under ICWA)
- Jude M. v. State, Dep’t of Health & Social Servs., Office of Children’s Servs., 394 P.3d 543 (Alaska 2017) (likelihood-of-harm is factual question reviewed for clear error)
- Demetria H. v. State, Dep’t of Health & Social Servs., Office of Children’s Servs., 433 P.3d 1064 (Alaska 2018) (definition and requirements for ICWA active efforts)
- Maisy W. v. State, Dep’t of Health & Social Servs., Office of Children’s Servs., 175 P.3d 1263 (Alaska 2008) (assessing agency involvement in entirety)
- Lucy J. v. State, Dep’t of Health & Social Servs., Office of Children’s Servs., 244 P.3d 1099 (Alaska 2010) (ICWA placement preference does not alter best-interests termination analysis)