Notice: This opinion is subject to correction before publication in the PACIFIC 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.gov. 

THE SUPREME COURT OF THE STATE OF ALASKA 

MONA J., 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF HEALTH

SOCIAL SERVICES, OFFICE

CHILDREN’S SERVICES, 

Appellee. 

) 

) Supreme Court No. S-18049 

Superior Court No. 4BE-17-00064 CN 

O P I N I O N 

& No. 7598 – June 10, 2022 

OF 

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Appeal from the Superior Court of the State of Alaska, 

Fourth Judicial District, Bethel, Nathaniel Peters, Judge. 

Appearances: Rachel E. Cella, Assistant Public Defender, 

and Samantha Cherot, Public Defender, Anchorage, for 

Appellant. Kimberly D. Rodgers and David A. Wilkinson, 

Assistant Attorneys General,Anchorage, and Treg R. Taylor, 

Attorney General, Juneau, for Appellee. 

Before: Winfree, Chief Justice, Maassen, Carney, 

Borghesan, and Henderson, Justices. 

MAASSEN, Justice. 

I. INTRODUCTION 

Thesuperior court terminated amother’sparentalrights toher twochildren. 

Because the children are Indian children as defined by the Indian Child Welfare Act 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(ICWA), the Office of Children’s Services (OCS) was required to make active efforts to 

provide remedial services and rehabilitative programs designed to prevent the breakup 

of the family before the mother’s rights could be terminated. The superior court found 

clear and convincing evidence that OCS satisfied this requirement, although OCS’s 

efforts were ultimately unsuccessful. 

The mother appeals, challenging only the active efforts finding. She asks 

us to overturn precedent allowing courts to consider a parent’s noncooperation and the 

resulting futility of OCS’s actions when determining whether OCS satisfied the active 

efforts standard. She argues in the alternative that even under existing law the superior 

court’s active efforts finding was erroneous. We agree with the mother that the court 

erred by stating that active efforts “are dependent on [the mother’s] willingness to 

engage”; the active efforts inquiry depends primarily on OCS’s efforts, not the parent’s 

reaction to those efforts. We take this opportunity to clarify the extent to which a 

parent’s noncooperation is relevant to the active efforts analysis. And although we 

disagree in part with the superior court’s approach in this case, we independently 

conclude that OCS’s efforts satisfy the active efforts standard, and we therefore affirm 

the termination order. 

II. FACTS AND PROCEEDINGS 

A. Background And Initial Contact With OCS 

Mona is the mother of Anders (born in 2013) and Vera (born in 2015),1 

who are “Indian children” as defined by ICWA.2 Mona is no longer in a relationship 

1 Pseudonyms are used to protect the family’s privacy. 

2 25 U.S.C. § 1903(4) (defining an “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 

(continued...) 

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with the children’s father, Jared, who voluntarily relinquished his parental rights at the 

termination trial. 

OCS first became involved with Mona’s family in December 2016, after 

she repeatedly asked a nonprofit family support center to help her with her children. In 

January 2017 Mona met with an OCS worker at an Anchorage domestic violence shelter. 

She explained that she lacked reliable family support in Anchorage, was taking 

medication for depression and anxiety, and was feeling overwhelmed. Anders had been 

behaving aggressively, which Mona attributed to his exposure to domestic violence, and 

Vera had begun copying his misbehavior. OCS offered Mona resources, including a bus 

pass to help her get to appointments, but Mona declined the offer. 

Mona sought OCS’s help again the next day, seeking a temporary 

alternative caregiver for her children. OCS contacted Mona’s tribe and the children’s 

paternal grandmother, Ruth, who lived in Bethel, and planned for the children to go to 

Bethel to temporarily live with Ruth. Before the flight, however, Mona contacted OCS 

and said she would keep the children with her in Anchorage instead. OCS attempted to 

contact Mona a few more times that month, but she did not return its calls. 

B. Mona’s Initial Assessment 

OCS next met with Mona in June 2017 at a Bethel shelter; Mona had just 

left her village because of a lack of support there. She told the OCS caseworker that she 

had been using tramadol, a synthetic opioid, for about two years due to stress and had 

last used it a few days before. The caseworker later testified that during the encounter 

Mona’s children were unruly and “not really listening to [Mona],” and Vera had a bruise 

2 (...continued) 

for membership in an Indian tribe and is the biological child of a member of an Indian 

tribe”). 

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near one eye. Six days later Mona returned a call from the caseworker and, according 

to the caseworker’s later testimony, “didn’t feel that she was safe right now for the kids.” 

She also told the caseworker she was pregnant.3 

The caseworker began looking for a temporary caregiver for Anders and 

Vera; the caseworker left a voicemail for Jared and spoke with Mona’s mother, who 

declined to take the children. The caseworker then talked to Ruth, who agreed to take 

the children overnight and again while Mona received an integrated assessment to 

evaluate any substance abuse and behavioral issues. 

Mona’s integrated assessment recommended a six-week residential 

treatment program, which the caseworker encouraged her to attend. Mona initially 

agreed to participate but then changed her mind; she told OCS that she and the children 

would return to the village instead. 

C. OCS’s Non-Emergency CINA Petition 

The caseworker next met with Mona in July after Vera was admitted to the 

hospital with pneumonia; Anders was living with Jared. OCS filed a non-emergency 

child-in-need-of-aid (CINA) petition alleging that both children were children in need 

of aid. The next day, apparently in response to the petition, Mona left an abusive 

voicemail at OCS, telling the caseworker to leave her and her children alone. The 

caseworker met with Jared, who told her that Mona now had both children because he 

and Ruth were frightened of her. 

The caseworker met with Mona in late July and texted her a few days later 

“to see if she needed any assistance”; Mona did not respond. 

Mona gave birth in late October 2017, and the baby tested positive for 

tramadol; she arranged for a tribal adoption of the baby. 

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D. The Children’s Placement With Jared And Ruth 

In August 2017 Mona called the caseworker and asked that OCS take the 

children into its custody. OCS placed both children with Jared, but Ruth assumed most 

childcare responsibilities. Mona visited fairly regularly, though according to Ruth the 

children acted out after her visits. 

In mid-October OCS created a case plan for Mona, which she signed. The 

plan called for her to address her substance abuse issues, attend outpatient services, 

obtain a behavioral health and substance abuse assessment, and complete a parenting 

class; Mona testified that she completed the parenting class. 

In late October Ruth asked OCS to remove Anders and Vera from her care, 

and OCS filed an amended emergency petition for CINA adjudication and temporary 

custody. In early November OCS removed the children fromRuth’s home and sent them 

to live with a foster parent. 

In December Mona stipulated that Anders and Vera were children in need 

of aid due to neglect. The stipulation also outlined a visitation schedule: Once the 

children were returned to Ruth’s home, Mona would have daily phone calls and three 

two-hour visits a week. Mona was also supposed to obtain an integrated assessment; 

once she completed any recommended treatment program, overnight visits and a trial 

home visit could begin. But the stipulation recognized that Mona was living with her 

boyfriend, Earl, a registered sex offender, and provided that any visits would “depend 

on an appropriate resolution to the problems presented by the presence of a registered 

sex offender” in her home.4 

Mona and Earl continued their relationship throughout the case, and there 

were a number of domestic violence incidents between them in 2018 and 2019. 

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E. OCS’s Further Involvement With Mona 

The two children were returned to Ruth’s care in late 2017 or early 2018. 

A second OCS caseworker formalized a family contact plan that allowed Mona to visit 

the children three times a week. Ruth supervised the visits at first, but she later told 

Mona to schedule them with OCS. Ruth again asked to have the children removed from 

her home because of Mona’s volatility and the children’s misbehavior following her 

visits. OCS placed the children in another home temporarily. 

Anders was returned to Ruth’s home after about a month, but Ruth felt she 

could not safely take care of both children because they fought constantly. Vera was 

placed with a foster parent, Lily, in another village. 

Mona participated in an outpatient substance abuse program early in 2018 

and believed she had completed that program, though an OCS caseworker later testified 

that Mona told her she left early. In the spring of 2018 Mona visited the emergency 

room after overdosing on tramadol. At a follow-up visit she said she used tramadol 

because of the stress caused by OCS’s removal of her children, and she said she worried 

that healthcare providers were making it more difficult for her to get her children back. 

That summer Vera traveled to South Dakota with Lily. Mona moved for 

a visitation review hearing, asking the court to grant her unsupervised visits with Anders 

and allow her to see Vera in South Dakota. The court denied these requests but 

encouraged OCS to work toward unsupervised visits with Anders and to plan a long visit 

with Vera upon her return to Alaska. 

A third OCS worker created a new case plan in September. The plan 

required Mona to volunteer for school-relatedactivities,participateintraditional cultural 

activities with her children, and engage in formal counseling as needed. In April 2019 

an OCS worker called Mona to schedule a case-planning meeting and offered her a cab 

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voucher. Mona missed the meeting and did not answer a follow-up call; she called back 

later that day but did not leave a message when no one answered. 

In May afourth caseworker assumed responsibility for Mona’scase. Mona 

left this caseworker a message asking for an appointment to create a case plan. The 

caseworker testified that she scheduled an appointment for later in the month and offered 

Mona cab fare, but she could not recall whether the meeting occurred. 

Lily took Vera to South Dakota again in summer 2019. OCS coordinated 

a trip for Mona to visit Vera there that summer and provided her with a travel itinerary. 

In June OCS also gave Mona applications for three residential treatment facilities in 

Anchorage and Fairbanks. When the caseworker asked Mona how she planned to keep 

her children safe from Earl given his sex-offender status, Mona became emotional; she 

told the caseworker she was pregnant with Earl’s child and would not put the father of 

her child out of the house. 

In July OCS updated the family contact plan due to complaints from both 

Ruth and Lily about Mona’s behavior. Visits with Anders were no longer to take place 

at Ruth’s home, and limits were placed on Mona’s contact with Lily. Mona completed 

another substance abuse assessment, but without the behavioral component that OCS 

believed should be included. 

In late 2019 Mona attended residential treatment in Bethel for three weeks 

but was medivaced to Anchorage with heart problems and did not complete the program. 

In November 2019 she gave birth to another child, who remained with her as of the time 

of trial. 

In December the caseworker met with Mona and created a case plan 

requiring her to undergo behavioral health and substance abuse assessments, complete 

a psychological evaluation, and find housing apart from Earl. But Mona refused to sign 

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the case plan or a release of information. OCS nonetheless arranged for her to have a 

psychological evaluation in Anchorage, including booking flights and providing cab 

vouchers, and it sent her the itinerary a little over a week in advance. Mona did not 

respond and the assessment did not occur; Mona contends on appeal that she never 

agreed to it. Also at this meeting Mona asked that OCS set up a urinalysis schedule for 

her.5 

Mona and her attorney met with the caseworker in January 2020. In 

response to the caseworker’s questions, Mona denied knowing any details of Earl’s 

criminal history. OCS invited her to a meeting to discuss medications that had been 

prescribed for Anders to help with his behavior, but she did not attend, later telling OCS 

she had lost her bus pass. 

In February Mona asked the court to review its disposition order. She said 

she had been sober for over a year, and although she hoped to find independent housing, 

“the reality of housing in the region means that people can wait for years to obtain their 

own housing.” She also argued that an “outright ban on contact” between Earl and the 

children was not feasible. In March Mona asked the court to review the limits on 

visitation; OCS had just prohibited visits with Anders at school after Mona visited one 

day without prior authorization and he threw a tantrum. 

In April OCS filed a petition to terminate Mona’s and Jared’s parental 

rights. In April the court also held a permanency hearing and approved OCS’s goal of 

adoption, and it denied Mona’s motions to review the disposition order and visitation. 

The court also instructed OCS to help Mona find new housing. In response OCS 

contacted the Alaska Housing Finance Corporation to determine whether Mona was 

In March and April of 2020, OCS set up urinalyses for Mona pursuant to 

this request; she took about ten tests and all were negative. 

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eligible to apply for its services. The caseworker filled out part of an application, 

highlighted the sections Mona needed to complete, and dropped the packet off for her; 

Mona picked the packet up but the superior court found that she did not complete it, 

which the court attributed to her reluctance to leave Earl. 

In May Mona asked OCS whether it could find alternative placement for 

Vera in Alaska for the summer rather than allowing Lily take her to South Dakota again. 

OCS contacted Mona’s grandmother, but placement with her was not possible because 

of a household member’s disqualifying criminal history. OCS continued to reach out to 

Mona’s family members based on a list Mona provided, but it was unable to find Vera 

a suitable placement, and it again allowed her to spend the summer in South Dakota with 

Lily. OCS arranged to fly Mona to Bethel for a visit during Vera’s stopover on the way 

out of state. Mona was already in Bethel, however, because she had taken her baby to 

the emergency room there. She nonetheless missed the scheduled visit with Vera. She 

then attempted to intercept Lily and Vera at the airport before they boarded the plane, but 

OCS refused to allow the meeting to occur because it could not arrange appropriate 

supervision at the last minute and Mona was in a “very emotional” state. 

In June 2020 another caseworker was assigned to the case. He created a 

new case plan, which Mona refused to sign. The plan required her to obtain a 

psychological evaluation, complete another parenting class, participate in another 

substance abuse assessment and followitsrecommendations, undergo randomurinalysis 

testing, and end the children’s contact with known sexual offenders. 

By November the case was reassigned to one of the caseworkers who had 

had it before. This caseworker had difficulty contacting Mona about visits and 

eventually, at Mona’s request, communicated with her only through her attorney. In 

February 2021 OCS learned that Vera had been diagnosed with an emotional disorder 

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and asked Mona to consent to medication. Mona refused; the caseworker responded by 

asking her to resume case planning and undergo a behavioral health assessment. The 

next day she sent Mona a letter encouraging her to reengage with OCS. 

F. Termination Trial And Termination Order 

The superior court held a trial in March 2021, about a year after the 

termination petition was filed, and ordered the termination of Mona’s parental rights. 

Among its other necessary findings the court found by clear and convincing evidence 

that OCS had made active efforts to provide remedial services and rehabilitative 

programs intended to prevent the breakup of the family, as required by ICWA.6 

The superior court began its discussion of active efforts by stating that 

active efforts “are more than reasonable efforts and are dependent on [Mona’s] 

willingness to engage.” The court found that Mona “was never willing to engage in an 

attempt to reunify with her children and actively attempted to frustrate OCS’s attempts 

to provide remedial service[s] and rehabilitative programs at different points throughout 

the case.” The court acknowledged that Mona attended urinalysis tests, always tested 

negative, participated in some family contacts, and completed some of her case plan 

requirements. The court also observed, however, that she sometimes actively frustrated 

family contact and refused to cooperate with most OCS workers. The court wrote: 

“OCS testified convincingly that OCS offered services to [Mona] over the life of the 

case” even though “there were times when OCS was more lax in [its] efforts.” The court 

cited OCS’s facilitation of regular visits and its efforts to get Mona the proper 

6 25 U.S.C. § 1912(d) (“Any party seeking to effect a . . . termination of 

parental rights to[] an Indian child under State law shall satisfy the court that active 

efforts have been made to provide remedial and rehabilitative programs designed to 

prevent the breakup of the Indian family and that these efforts have proved 

unsuccessful.”). 

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assessments, contrasting these efforts with Mona’s failure to return calls and texts, her 

demand that all contact go through her attorney, and her refusal to attend meetings. The 

court also noted OCS’s attempts to encourage alternative housing for Mona and her 

refusal to move away from Earl. 

Mona appeals the termination order, challenging the court’s active efforts 

finding. 

III. STANDARD OF REVIEW 

“Whether OCS made active efforts . . . as required by ICWA is a mixed 

question of law and fact.”7

 “We review factual findings for clear error, reversing only 

if, after ‘review of the entire record’ . . . we are left ‘with a definite and firm conviction 

that a mistake has been made.’ ”8 “Whether the superior court’s factual 

findings . . . satisfy ICWA is a question of law to which we apply our independent 

judgment.”9 “We ‘bear in mind at all times that terminating parental rights is a drastic 

measure.’ ”10 

7 Philip J. v. State, Dep’t of Health &Soc. Servs., Off. of Child.’s Servs., 314 

P.3d 518, 526 (Alaska 2013). 

8 Ronald H. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 

490 P.3d 357, 365 (Alaska 2021) (omission in original) (quoting Jon S. v. State, Dep’t 

of Health & Soc. Servs., Off. of Child.’s Servs., 212 P.3d 756, 761 (Alaska 2009)). 

9 Id. 

10 Jon S., 212 P.3d at 761 (quoting Karrie B. ex rel. Reep v. Catherine J., 181 

P.3d 177, 184 (Alaska 2008)). 

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IV.	 DISCUSSION 

A.	 ICWA Requires The State To Make Active Efforts To Provide 

Remedial Services Designed To Reunite The Family. 

ICWA requires that “[b]efore terminating parental rights to an Indian child, 

a court must find [by clear and convincing evidence] that ‘active efforts have been made 

to provideremedial services and rehabilitative programs designed to prevent the breakup 

of the Indian family and that these efforts have proved unsuccessful.’ ”11 The Bureau of 

Indian Affairs regulations define active efforts as “affirmative, active, thorough, and 

timely.”12 Active efforts “must involve assisting the parent . . . through the steps of a 

case plan and with accessing or developing the resources necessary to satisfy the case 

plan.”13 The regulations explain: 

To the maximum extent possible, active efforts should be 

provided in a manner consistent with the prevailing social 

and cultural conditions and way of life of the Indian child’s 

Tribe and should be conducted in partnership with the Indian 

child and the Indian child’s parents, extended family 

members, Indian custodians, and Tribe.[14] 

Efforts should be “tailored to the facts and circumstances of the case.”15 

11 Caitlyn E. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 

399 P.3d 646, 651 n.6, 654 (Alaska 2017) (quoting Jon S., 212 P.3d at 760-61); see also 

25 U.S.C. § 1912(d); 25 C.F.R. § 23.120(a) (2021); CINA Rule 18(c)(2)(B). 

12 25 C.F.R. § 23.2 (2021). 

13 Id. 

14 Id. 

15 Id.; see also Lucy J. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s 

Servs., 244 P.3d 1099, 1116 (Alaska 2010) (listing active efforts as one of several 

(continued...) 

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However, “the active efforts requirement does not require perfection.”16 A 

court’s “concern is not with whether [OCS’s] efforts were ideal, but with whether they 

crossed the threshold between passive and active efforts.”17 We have explained the 

difference between passive and active efforts as follows: 

Passive efforts are where a plan is drawn up and the client 

must develop his or her own resources towards bringing it to 

fruition. Active efforts . . . [are] where the state caseworker 

takes the client through the steps of the plan rather than 

requiring that the plan be performed on its own. For instance, 

rather than requiring that a client find a job, acquire new 

housing, and terminate a relationship with . . . a boyfriend 

who is a bad influence, [ICWA] would require that the 

caseworker help the client develop job and parenting skills 

necessary to retain custody of her child.[18] 

Courts “conduct[] an active efforts inquiry on a case-by-case basis because ‘no pat 

formula’ exists for distinguishing between active and passive efforts.”19 “In determining 

15 (...continued) 

procedural requirements under ICWA) (requiring that OCS “take into account the 

parents’ limitations or disabilities” and “ reasonably tailor [the reunification plan] to the 

client’s individual capabilities”)). 

16 Pravat P. v. State, Dep’t of Health &Soc. Servs., Off. of Child.’s Servs., 249 

P.3d 264, 272 (Alaska 2011). 

17 Id. 

18 A.A. v. State, Div. of Fam. &Youth Servs., 982 P.2d 256, 261 (Alaska 1999) 

(quoting CRAIG J. DORSAY, THE INDIAN CHILD WELFARE ACT AND LAWS AFFECTING 

INDIAN JUVENILES MANUAL 157-58 (1984)). 

19 Philip J. v. State, Dep’t of Health &Soc. Servs., Off. of Child.’s Servs., 314 

P.3d 518, 527 (Alaska 2013) (quoting A.A., 982 P.2d at 261). 

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whether OCS made active efforts, the trial court may consider all services provided 

during the family’s involvement with OCS.”20 

B.	 Courts May Consider A Parent’s Noncooperation When Determining 

Whether OCS Made ActiveEfforts,But TheAnalysis Turns Primarily 

On OCS’s Efforts. 

The superior court began its discussion of active efforts with the statement 

that “[a]ctive efforts are more than reasonable efforts and are dependent on [Mona]’s 

willingness to engage,” and it extensively discussed Mona’s lack of cooperation with 

OCS. Mona argues that the court’s focus on her actions was error; she also asks us to 

overruleour precedent allowingcourts toconsideraparent’s demonstratedunwillingness 

to engage with OCS when determining whether OCS’s efforts satisfy the ICWA 

standard. Lack of engagement by a parent, Mona argues, “may demonstrate the requisite 

efforts were unsuccessful, but it should not be used to excuse OCS’s shortcomings.” She 

argues that our precedent “excuses OCS based upon speculation and specious reasoning, 

undermining ICWA’s protections and perpetuating the problems ICWA was designed 

to counteract.” She contends that the superior court applied this so-called “futility 

doctrine,” and she urges us to overturn the doctrine and reverse the termination order in 

which, she argues, it played a decisive part. 

The superior court did overemphasize Mona’s behavior when determining 

whether OCS had made active efforts, and the court erred by stating that active efforts 

“are dependent on [Mona’s] willingness to engage.” We now seek to clarify how a court 

may appropriately consider a parent’s actions and unwillingness to cooperate when 

analyzing whether OCS has made active efforts. Crucially, we emphasize that the 

Sylvia L. v. State, Dep’t of Health &Soc. Servs., Off. of Child.’s Servs., 343 

P.3d 425, 432 (Alaska 2015). 

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analysis of active efforts under ICWA turns primarily on OCS’s actions, not on the 

parent’s response. 

When enacting ICWA in 1978, Congress acknowledged “that there is no 

resource that is more vital to the continued existence and integrity of Indian tribes than 

their children.”21 Congress found “that an alarmingly high percentage of Indian families 

are broken up by the removal, often unwarranted, of their children from them by 

nontribal public and private agencies and that an alarmingly high percentage of such 

children are placed in non-Indian foster and adoptive homes and institutions.”22 

Congress passed ICWA in an effort to “protect the best interests of Indian children and 

to promote the stability and security of Indian tribes and families by the establishment 

of minimum Federal standards for the removal of Indian children from their families.”23 

The active efforts requirement is an important aspect of these minimum standards.24 

21 25 U.S.C. § 1901(3). 

22 25 U.S.C. § 1901(4). Alaska is no exception to this history. See Lex 

Treinen, ‘I thought mynamewas mynumber’:Survivors recount Alaskaboarding school 

e x p e r i e n c e , A L A S K A P U B . M E D I A ( J u n e 2 5 , 2 0 2 1 ) , 

https://www.alaskapublic.org/2021/06/25/confronting-the-legacy-of-boarding-school 

s-in-alaska-2/; Kortnie Horazdovsky, Alaska Native elders share boarding school 

experiences on ‘Orange Shirt Day’, ALASKA’S NEWS SOURCE (Sep. 30, 2021), 

https://www.alaskasnewssource.com/2021/09/30/alaska-native-elders-share-boarding 

-school-experiences-orange-shirt-day/. 

23 25 U.S.C. § 1902. 

24 See 25 U.S.C. § 1912(d). 

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A parent’s lack of cooperation or unwillingness to participate in treatment 

does not excuse OCS from making active efforts and proving that it has made them;25 we 

cannot create a judicial exception to ICWA.26 As we have written before, an active 

efforts finding must “turn[] on OCS’s efforts.”27 That said, a parent’s actions have a 

place in the court’s determination of whether OCS’s efforts satisfy the ICWA standard.28 

Our prior cases recognize three sometimes-interconnected ways that a parent’s 

unwillingness to cooperate can impact a court’s active efforts analysis: (1) it can excuse 

25 See Bill S. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 

436 P.3d 976, 983 (Alaska 2019) (“[T]he parents’ lack of effort does not excuse OCS’s 

failure to make and demonstrate its efforts.”). 

26 A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled in part on other 

grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). 

27 Demetria H. v. State, Dep’t of Health &Soc. Servs., Off. of Child.’s Servs., 

433 P.3d 1064, 1072 (Alaska 2018). 

28 Federal guidelines leave room for some consideration of a parent’s actions 

when evaluating active efforts. When discussing how long active efforts must be made, 

the guidelines state: 

[I]f a parent initially refused alcohol treatment despite an 

agency’s active efforts to provide services, a court could find 

that these efforts satisfied the requirement for purposes of the 

foster-care placement. But, if the parent subsequently 

completes alcohol treatment and needs additional services to 

regain custody (such as parenting skills training), the court 

will need to consider whether active efforts were made to 

provide these services. 

BUREAU OF INDIAN AFFS., U.S.DEP’T OF THE INTERIOR,GUIDELINESFOR IMPLEMENTING 

THE INDIAN CHILD WELFARE ACT 43 (Dec. 2016) [hereinafter BIA GUIDELINES]. 

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further active efforts once it is clear those efforts would be futile;29 (2) it can excuse 

“minor failures by [OCS]”;30 and (3) it can influence what actions qualify as active 

efforts.31 

The first listed use of the doctrine — to excuse further efforts — seems to 

be what Mona is most concerned with, and we agree that it should be the least frequently 

invoked. Although there are rare occasions where further active efforts of any type may 

be excused, OCS must always show that it made active efforts in the first place.32 And 

when a parent is unwilling to cooperate or to participate in treatment, OCS’s response 

must be to attempt to overcome that noncooperation.33 This requires understanding why 

the parents of Alaska Native and Native American children may be suspicious of OCS 

and reluctant to cooperate in a case plan.34 But even courts that have expressly rejected 

29 See, e.g., Wilson W. v. State, Off. of Child.’s Servs., 185 P.3d 94, 97, 101 

(Alaska 2008). 

30 See, e.g., Ben M. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s 

Servs., 204 P.3d 1013, 1021 (Alaska 2009). 

31 See, e.g., Sylvia L. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s 

Servs., 343 P.3d 425, 432-33 (Alaska 2015). 

32 We do not intend to imply that OCS may determine independently that 

active efforts are no longer required in a particular case. Cf. AS 47.10.086(c)(2)(A) 

(allowing a court to determine that reasonable efforts are not necessary given certain 

circumstances, such as parent murdering other parent). OCS should assume that active 

efforts should continue. 

33 See 25 C.F.R. § 23.2 (2021) (requiring child welfare agencies to “help[] the 

parents to overcome barriers” to reunification). 

34 The Washington Supreme Court recently wrote: 

(continued...) 

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a futility doctrine have agreed that there is some point at which active efforts can no 

longer be required.35 This issue may be subsumed in another rule we apply in the active 

efforts context: OCS’s efforts must be reviewed as a whole, and a failure in one area or 

for a discrete amount of time will not necessarily bar a finding that OCS satisfied the 

active efforts standard over the life of the case.36 

Regarding the second use of the doctrine — when a parent’s 

noncooperation can excuse minor failures by OCS — we emphasize that this extends 

34	 (...continued)
 

A parent’s inability or unwillingness to engage with the
 

[State] may be attributed to many factors, such as cultural
 

differences, poverty, or generational trauma. It may also be
 

related to the reasons for the dependency petition and ensuing
 

case. Excusing the [State’s] burden to engage in active
 

efforts based on a parent’s lack of engagement would
 

impermissibly harm Native families who are experiencing
 

poverty or other issues that often fall under the rubric of
 

“neglect.” While poverty alone is not a sufficient basis for
 

dependency or termination, it has historically been used as
 

justification to remove Native children . . . .
 

In re Dependency of G.J.A., 489 P.3d 631, 649 (Wash. 2021). “In addition, generational 

trauma has instilled a deep sense of distrust of government workers in Native 

communities.” Id. 

35 Id. at 635 (“The [State] is not excused from providing active efforts unless 

it can demonstrate to the court it has made sufficient efforts and those efforts ‘have 

proved unsuccessful.’ ” (quoting 25 U.S.C. § 1912(d)); In re JL, 770 N.W.2d 853, 867 

(Mich. 2009) (“The ICWA obviously does not require the provision of endless active 

efforts, so there comes a time when the [State] or the tribe may justifiably pursue 

termination without providing additional services.” (emphasis in original)). 

36 Walker E. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 

480 P.3d 598, 607-08 (Alaska 2021). 

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only to minor failures that are connected to the parent’s lack of cooperation. Lack of 

cooperation does not excuse major failures by OCS or minor OCS failures unrelated to 

the parent’s behavior. This use of the doctrine may also be subsumed in the rule that we 

view OCS’s efforts as a whole.37 

The third use of the doctrine involves the most common way that a parent’s 

actions may feature in an active efforts analysis: how OCS’s efforts should respond to 

a parent’s noncooperation. ICWA requires that active efforts “be tailored to the facts and 

circumstances of the case”;38 these circumstances include a parent’s negative reaction to 

OCS’s attempts at rehabilitation and reunification. When a parent is unwilling to 

cooperate and OCS merely persists in the same actions it would have taken with a 

cooperative parent, OCS may be failing to engage in active efforts by not adjusting to the 

circumstances of the case. A fairly wide spectrum of behavior may be classified as 

“noncooperation” or a “lack of willingness to participate.” This can range from a refusal 

to participate in treatment to threats to harm OCS employees.39 Certainly different 

behaviors, and motivations, require different adjustments from OCS.40 

37 Id. 

38 25 C.F.R. § 23.2. 

39 See, e.g., K.N. v. State, 856 P.2d 468, 471-72, 477 (Alaska 1993) (parent 

efused to submit to psychological evaluation without court order or to follow steps of 

reatment plan); Wilson W. v. State, Off. of Child.’s Servs., 185 P.3d 94, 97, 101-02 

Alaska 2008) (parent threatened to kill OCS workers). 

r

t

(

40 For example, ifaparent refuses toundergosubstanceabuse treatment, OCS 

should seek to understand the reasons for that refusal and address them. A refusal based 

on a fear of confinement would require a different response than a refusal based on the 

parent’s conviction that there is no substance abuse problem in the first place. 

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As Mona contends, some of our past cases have suggested that OCS 

passivity may be justified by a parent’s unwillingness to cooperate. In A.A. v. State, 

Department of Family & Youth Services, 

41 we wrote that “although the State’s efforts in 

relation to [a parent] may have been relatively passive, [the parent] demonstrated a lack 

of willingness to participate in treatment” and therefore the requirements of ICWA were 

met.42 And in Ronald H. v. State, Department of Health & Social Services, Office of 

Children’s Services, 

43 we wrote that a parent’s noncooperation “is particularly relevant 

when efforts become passive due to lack of cooperation from the parent.”44 These cases 

do not obviate OCS’s responsibility to make active efforts and to modify those efforts 

as necessary in response to a parent’s lack of cooperation. To be clear, a lack of 

cooperation does not justify a decision to make only passive efforts. OCS always has an 

obligation to make active efforts, regardless of whether a parent cooperates. Our prior 

statements should be understood as a recognition that a parent’s noncooperation with 

OCS will necessarily affect the kinds of efforts OCS is able to make toward reunification 

41 982 P.2d 256 (Alaska 1999). 

42 Id. at 262. At oral argument, Mona highlighted A.A. as a particularly 

problematic fact pattern. In A.A. we affirmed a finding of active efforts even though 

OCS had not even made a case plan. Id. Without saying we would reach the same result 

today, we take note of complicating factors in A.A. such as the father’s incarceration and 

the length of his sentence. We wrote: “ ‘While [n]either incarceration nor doubtful 

prospects for rehabilitation will relieve the State of its duty under ICWA to make active 

remedial efforts,’ the practical circumstances surrounding a parent’s incarceration . . . 

may have a direct bearing on what active remedial efforts are possible.” Id. at 261 (first 

alteration in original) (quoting A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled 

in part on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996)) . 

43 490 P.3d 357 (Alaska 2021). 

44 Id. at 366. 

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and in that way affects a court’s analysis of whether OCS has satisfied its active efforts 

burden. 

Mona suggested at oral argument that we require trial courts to conduct 

substantive review of ongoing active efforts at regular points throughout CINA 

proceedings and collaborate with OCS, the parent, and other parties on identifying 

possible next steps. The federal regulations do not impose such a requirement,45 

although federal guidelines do make note of “a recommended practice for a court to 

inquire about active efforts at every court hearing and actively monitor compliance with 

the active efforts requirement.”46 We add our support to this recommendation as good 

practice while not making it a requirement at this time. We note that it is particularly 

difficult to assess active efforts retrospectively over a period of many years, and an 

approach involving more regular review would increase the likelihood that problems can 

be timely resolved and disagreements mitigated — goals all parties should share. 

Finally, we note that in asking us to overrule our own precedent, Mona 

points to In re Dependency of G.J.A., in which the Washington Supreme Court recently 

rejected its state’s version of a futility doctrine as applied in ICWA cases.47 This 

“judicially created” futility doctrine excused the State “from providing services if the 

services would have been futile or would not remedy the parental deficiencies within the 

45 See 25 C.F.R. § 23.120 (2021) (requiring only that a court ascertain that 

active efforts have been made “[p]rior to ordering an involuntary foster-care placement 

or termination of parental rights”). 

46 BIA GUIDELINES, supra note 28, at 43. 

47 489 P.3d 631, 635 (Wash. 2021). 

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child’s foreseeable future,” even if active efforts had not already been provided.48 This 

is not the law in Alaska, and we explicitly reject such a doctrine today. OCS’s duty to 

make active efforts under ICWA cannot vary “based on subjective, pre-intervention 

criteria such as a parent’s motivation or treatment prognosis.”49 

C. In This Case OCS Made Active Efforts As Required By ICWA. 

Despite our concern with the superior court’s statement of the law 

governing active efforts, we do agree with its conclusion that OCS demonstrated and 

proved by clear and convincing evidence its active efforts to reunite Mona with her 

children. 

OCS’s activeefforts included providingMonabuspassesandcabvouchers; 

coordinating with Ruth to temporarily care for the children in early 2017 and again that 

summer; speaking with Mona’s care provider about her 2017 integrated assessment and 

encouraging her to follow the provider’s recommendation for inpatient treatment; 

scheduling another assessment for her and communicating with the care provider; 

creating several case plans for her; arranging for Mona to receive a psychological 

assessment in Anchorage, including making the appointment, coordinating Mona’s 

flights, and preparing cab vouchers for her; supplying Mona with applications for 

multiple treatment facilities; encouraging her to live separately from Earl so that her 

children could live with her safely; involving Mona’s tribe; contacting the Alaska 

Housing Finance Corporation to see whether Mona was eligible for its services; 

48 Id. at 648-49. 

49 A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled in part on other 

grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). OCS agrees in its briefing 

that “the noncooperation rule does not absolve OCS from making and documenting 

active efforts even when the likelihood of success is bleak.” 

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completing part of a housing application for Mona and giving her the rest of the 

applicationto complete; offering urinalysis testing;enrolling Anders inbehavioral health 

services; ensuring that Vera could receive play therapy while in South Dakota; and 

contacting members of Mona’s extended family while seeking an alternative placement 

for Vera. 

Throughout the case OCS facilitated visitation between Mona and her 

children, including in-person, telephonic, and video visits. Many visits required OCS 

to coordinate flights between outlying villages and Bethel and between Bethel and South 

Dakota. OCS provided Mona with cab vouchers, bus passes, and offers of rides to help 

her attend visits; arranged for her to visit Anders at school during lunch times and recess; 

and scheduled children’s birthday celebrations to accommodate her attendance and 

preferences. Visitationwas complicated by OCS’s difficulty reaching Monaattimes, but 

the caseworkers generally worked to accommodate her. 

OCS continued with its efforts despite Mona’s lack of consistent 

cooperation. Early in the case Mona sought out OCS’s support on occasion and 

voluntarily shared information about her circumstances and needs. But she expressed 

her mistrust of many people. After OCS filed a petition for custody, Mona left a 

caseworker an obscene voicemail telling her to leave her children alone, which the 

superior court labeled as the start of Mona’s “unending antagonismand hostility towards 

OCS.” She was at times combative in her communication with her caseworkers as the 

case went on. She hung up on one caseworker on occasion and refused to let another 

into her home. For a while she refused to speak with anyone from OCS and would 

communicate with them only through her attorney, even about visitation. She asked that 

certain OCS workers not be allowed to supervise her visits. She attempted to skirt 

OCS’s visitation rules, particularly with regard to the children’s contact with Earl, which 

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she sometimes allowed and encouraged. But OCS did not stop making efforts as a result 

of this behavior. For example, it complied with Mona’s request to communicate only 

through her attorney, and it encouraged her to restart case planning after she stopped. 

In sum, this case is an example not of OCS stopping active efforts in the face of a 

parent’s noncooperation but of OCS persisting despite resistence and changing course 

when necessary. 

OCS’s efforts were not perfect. Although a number of different OCS 

workers were assigned to Mona’s case over its more than four-year duration, there were 

very few, if any, case transfer meetings. OCS mismanaged at least one court-directed 

visitation and did not provide consistent urinalysis testing. It did not help Mona look for 

housing until several years into her case (as is further discussed below). But perfection 

is not the standard, and we conclude that OCS’s efforts qualify as “affirmative, active, 

thorough, and timely.”50 

1. Failure to refer Mona for a neuropsychological examination 

Mona argues that OCS’s efforts were not active because they were not 

adequately tailored to her known disabilities — specifically a traumatic brain injury that 

she says should have prompted OCS to refer her for a neuropsychological exam early in 

the case. Mona cites the trial testimony of OCS expert Philip Kaufman, who called her 

“a very, very challenged woman who’s got lots going on that needs to be evaluated that 

hasn’t been evaluated,” and notes that her “records established she had suffered a 

traumatic brain injury during an ATV accident.” Mona argues that “it should have been 

equally clear to OCS that it needed to adjust its strategies in working with her,” and a 

referral to neuropsychological testing early in the case — when she was still interested 

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50 25 C.F.R. § 23.2 (2021). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

in working with OCS — “could have helped OCS identify appropriate ways of 

interacting with [her] and set the case on a different path.” 

But we agree with OCS that “the lack of such an evaluation does not negate 

the . . . active efforts that OCS did make in trying to address Mona’s mental health and 

other needs.” Kaufman’s testimony about the traumatic brain injury —the only mention 

of it at the termination trial — provided no details; he did not know how recent it was, 

although he did conclude that Mona’s “disabilities, whatever they may be, have impeded 

[her] from making the progress necessary . . . for her to . . . be a safe parent.” Mona did 

not bring up her brain injury or alleged resulting disability at trial, and the court did not 

mention it in its order terminating her parental rights. Given the limited evidence of this 

alleged disability, we cannot conclude that OCS’s failure to refer Mona for a 

neuropsychological exam was fatal to the success of its efforts.51 

2. Failure to help Mona find independent housing 

Mona argues that OCS knew as early as 2017 that she needed independent 

housing and was not interested in residential treatment, but it still did not begin helping 

her look for housing until 2020, after the court specifically required it. Mona was in a 

shelter when OCS first met with her in 2016; a year later OCS knew that she was living 

with Earl. OCS argues that it initially chose to prioritize Mona’s “need for residential 

substance abuse treatment that would have also addressed her immediate need for safe 

housing.” In summer 2017, OCS encouraged Mona to enroll in a six-week residential 

treatment program. She decided against this and told OCS she would return to her 

51 We also note that later in the case OCS did refer Mona for a psychological 

exam, made the appointment, purchased plane tickets, and prepared cab vouchers. Mona 

did not attend the appointment. 

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village instead. Although she did not immediately pursue that treatment option, there 

was evidence that she participated in residential treatment at times at least through late 

2019. 

OCS claims that its 2020 offer of housing assistance was 

“timely . . . because the help was provided when Mona finally expressed an interest in 

leaving” Earl. In February 2020 Mona argued in a court filing that she would not be able 

to find independent housing, indicating some possible interest in living separately from 

Earl; two months later (at the superior court’s directive) OCS started a housing 

application for her. Under the circumstances, we do not believe that OCS’s failure to 

prioritize independent housing earlier in the case negates an active efforts finding. Mona 

had repeatedly said she did not want to leave Earl; she became emotional when the 

caseworker brought up the subject and refused to sign a case plan that required it. We 

conclude that OCS’s failure to find independent housing for Mona does not foreclose a 

finding that OCS made active efforts in this case. 

3. Failure to notify Mona of the dangers Earl presented 

Mona also argues that OCS “waited until the termination trial to convey the 

full scope of concerns about [Earl] to” her and did not do enough beforehand to inform 

her about his history and encourage her to leave the relationship. She claims that before 

the termination trial she was not aware of the extent of Earl’s criminal past. OCS 

responds that “the record reflects that Mona knew [Earl] was dangerous, and OCS could 

have done little more under the circumstances.” OCS cites trial testimony indicating that 

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Earl had assaulted Mona more than once and that OCS warned her about him 

repeatedly.52 

We agree with OCS’s view of this issue. Significantly, Mona signed a 

stipulation in December 2017 that acknowledged she lived with a convicted sex offender 

and that this was a barrier to reunification. But the evidence well supported a conclusion 

that she was unwilling to deal with the issue despite OCS’s repeated efforts to resolve 

it. OCS workers testified at trial that they asked Mona about her relationship with Earl 

several times over the life of the case and each time she was not willing to have that 

discussion. In June 2019 a caseworker met with Mona outside her home and “asked her 

how she planned to protect her son and daughter from a child sex offender if she was 

going to have him living in the home.” Mona became emotional, telling the caseworker 

that she was pregnant and not willing to put the father of her child out of the house. In 

a December 2019 meeting, a caseworker again told Mona she needed to find housing 

away from Earl so that her children would not be exposed to a child sex offender if they 

were to live with her. When the caseworker asked Mona what she knew about Earl’s 

52 OCS also cites earlier proceedings, including detailed testimony from Earl 

himself about his crimes, and alleges that Mona lied to OCS in 2020 when she told a 

caseworker she no longer lived with him. The admissibility of this testimony, along with 

that of other testimony and exhibits fromproceedings that preceded the termination trial, 

is at issue in this case; Mona argues that we cannot consider it and OCS argues that it is 

part of the record. Because this evidence was not properly admitted at trial, we do not 

consider it. Bill S. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 436 

P.3d 976, 983 n.32 (Alaska 2019); see also Chloe O. v. State, Dep’t of Health & Soc. 

Servs., Off. of Child.’s Servs., 309 P.3d 850, 856 (Alaska 2013) (“On appeal, we review 

a trial court’s decision in light of the evidence presented to that court.”); Paula E. v. 

State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 276 P.3d 422, 430 (Alaska 

2012) (“[W]e will consider only the evidence that was admitted at the hearing.”). 

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criminal history, Mona said she had never asked him anything about it. The caseworker 

raised the issue again in January 2020, and Mona said “she had never asked him about 

it, no one has ever told her anything about it, and the only thing that she knew was what 

she heard in court.” The caseworker testified at trial that when she then tried to ask 

whether Mona was curious about what had happened, Mona’s attorney cut her off and 

stopped Mona from answering. There was also testimony that OCS barred Earl from 

having contact with the children, a rule Mona repeatedly violated. Given all this, it was 

reasonable for OCS to assume that Mona was aware at least of Earl’s status as a child sex 

offender, if not of the exact details of his past crimes, and knew that her continued 

relationship with him presented a barrier to reunification; OCS repeatedly tried to raise 

the issue with Mona while continuing to provide her with services and visitation. Its 

efforts are sufficient to constitute active efforts under ICWA. 

V. CONCLUSION 

We AFFIRM the order terminating Mona’s parental rights. 

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