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.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

DUKE S., 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF HEALTH & 

SOCIAL SERVICES, OFFICE OF 

CHILDREN’S SERVICES, 

Appellee. 

) 

) Supreme Court No. S-16932 

Superior Court No. 3AN-14-00311 CN 

O P I N I O N 

No. 7317 – November 16, 2018 

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Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Gregory Miller, Judge. 

Appearances: Olena Kalytiak Davis, Anchorage, for 

Appellant. David T. Jones, Assistant Attorney General, 

Anchorage,and JahnaLindemuth,Attorney General,Juneau, 

for Appellee. Paul F. McDermott, Assistant PublicAdvocate, 

and Chad Holt, Public Advocate, Anchorage, for Guardian 

Ad Litem. 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 

MAASSEN, Justice. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. INTRODUCTION 

The superior court terminated a father’s parental rights to his son, finding 

that the child was in need of aid because of abandonment, neglect, and the father’s 

incarceration and that the Office of Children’s Services (OCS) had satisfied its statutory 

obligation to make reasonable efforts to reunify parent and child. The father appeals the 

termination decision, arguing that these findings are unsupported by the evidence. 

We agree with the father. The record shows that he initiated efforts to visit 

the child, who was already in OCS custody, as soon as he learned of his possible 

paternity; that during the father’s subsequent incarceration he had visitation as often as 

OCS was able to provide it; and that OCS never created a case plan to direct the father’s 

efforts toward reunification. We conclude that it was clear error to find that the child 

was in need of aid and that OCS made reasonable efforts toward reunification, and we 

therefore reverse the termination decision. 

II. FACTS AND PROCEEDINGS 

A. Background 

Duke S. and Evangeline G. had an “on and off” relationship for nearly a 

decade and are the parents of Darrence G., born in April 2014.1 OCS’s concerns about 

Darrence began before he was born: a hospital social worker contacted OCS in January 

2014 when Evangeline, then pregnant, tested positive for cocaine and THC. On the day 

Darrence was born, Evangeline, against medical advice, took him from the hospital after 

refusing any laboratory work on herself or the baby. But the hospital tested the umbilical 

cord blood and found it positive for cocaine and THC. These test results, and 

Evangeline’s failure to return for scheduled pediatric appointments, prompted the 

hospital to contact OCS. 

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1 We use pseudonyms to protect the privacy of the parties. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Evangeline resisted OCS’s efforts to investigate its concerns, but OCS 

prepared a series of safety plans that required, among other things, that Evangeline 

submit to random urinalysis (UA) testing. She failed to cooperate during her first UA 

appointment and missed the next two months of appointments. She did, however, bring 

Darrence in for a hair follicle test in June, which was positive for methamphetamine. 

After receiving the test results, OCS attempted to take emergency custody 

of Darrence. But Evangeline refused to disclose the child’s whereabouts despite a search 

warrant, a court order, and a writ of assistance. It was about ten days later that the police 

found Darrence and arrested Evangeline on charges of custodial interference. OCS 

authorized both a UA and a hair follicle test on the child, getting positive results for a 

variety of illegal substances. 

OCS developed a case plan for Evangeline, but she failed to follow it. In 

September she was sentenced on a theft charge and served time in prison and a halfway 

house; she was released in early December 2014. 

Duke had been unaware of Evangeline’s pregnancy until that September. 

He found out about Darrence’s existence after seeing Evangeline on television and 

talking with her mother. At the time, Duke was a single father and the primary caregiver 

for four of his eight children, three of whom had been born prematurely and had special 

needs. In September, “trying to get involved immediately,” Duke went to the OCS 

office, announced that he could be Darrence’s father, and asked for paternity testing. He 

later testified that he sat in OCS’s lobby with his daughter for three or four hours before 

he left, “went to the child support office,” and “ask[ed] for a DNA test” there. OCS later 

sent Duke the paternity paperwork. 

Before taking the paternity test, Duke met with Evangeline to “talk[] about 

the child” and the ongoing OCS proceedings. When Evangeline showed him pictures 

of Darrence, Duke felt immediately that “[t]his is one of my children.” He and 

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Evangeline went to the Bureau of Vital Statistics and “created [Darrence’s] birth 

certificate together . . . [b]ecause [Duke] knew that [Darrence] was [his] son.” 

In October OCSplaced Darrence with Siri M. Evangeline knew Siri before 

OCS took custody, and it was at her request that, after OCS took custody, Siri got an 

emergency foster care license so she could be considered as a placement for Darrence. 

Darrence remained in Siri’s care throughout the underlying proceedings. 

In early November Duke went to OCS’s offices and completed the 

paternity testing. Two weeks later, the test results confirmed he was Darrence’s father. 

By this time OCS had received at least two protective services reports 

involving Duke and his other children, in October and November 2014, and OCS was 

conducting a safety assessment of his home. As of January 2015, OCS had received five 

protective services reports concerning Duke and three of his children, had “had at least 

five to ten conversations” with Duke about them, and was still gathering information 

about Duke’s family. The protective services reports involved possible educational 

neglect, medical neglect, Duke’s angry outbursts with school staff, and one child’s 

behavior in school. While the reports were never substantiated and OCS did not have 

any CINA cases involving Duke’s other children, OCS put off deciding whether to place 

Darrence in Duke’s care. 

Dukeasked OCSfor visitation with Darrencefor Thanksgiving 2014. OCS 

denied his request, apparently because of the outstanding protective services reports. 

Duke met Darrence for the first time in December, when he accompanied Evangeline to 

one of her scheduled visits at OCS’s offices. 

The adjudication trial for Darrence was initially set for December 2, 2014, 

but the court granted a brief continuance at Evangeline’s request. Duke appeared in 

courtthatday;heacknowledged receiving OCS’s amended petition for adjudication, said 

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he intended to participate in the proceedings, declined representation, and said he was 

prepared to go forward. 

B. The Adjudication Trial 

The adjudication trial occurred over six days between December 2014 and 

February 2015. Both Evangeline and Duke represented themselves. Duke attended only 

four days of the trial, showing up late each time; he concedes that he “took a back seat” 

role during this proceeding.2 

OCS’s evidenceat theadjudication trialmostly concerned Evangeline. She 

called Duke as a witness, however, and he testified that OCS had ignored his overtures, 

that Darrence’s caseworker failed to contact him after confirming his paternity or 

establish a visitation plan despite promising to work on it, and that he believed OCS had 

no intention of reunifying him with his son. 

The superior court found by clear and convincing evidence that Darrence 

was a child in need of aid due to abandonment, physical harm, neglect, and substance 

abuse.3 The court also found that OCS had made reasonable but unsuccessful efforts to 

prevent Darrence’s removal from the family home. Though stating that OCS’s efforts 

had been unsuccessful “through no fault of OCS but rather through [Evangeline’s] and 

[Duke’s] actions and inactions,” the court made no specific findings about Duke; its 

findings focused on the conduct of Evangeline. 

2 When the court asked Duke whether he had questions for OCS’s second 

witness, Duke replied that he was “just listening for now” and agreed to let the court 

know if he wanted to ask questions. He ultimately declined the court’s offer to present 

his own evidence. 

3 AS 47.10.011(1), (6), (9), and (10). 

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C. The Period Between Adjudication And Termination 

Over the next few months, Duke was able to visit with Darrence several 

times. While only one visitation was “sanctioned and coordinated via OCS,” Duke had 

at least two others in December and January, when he accompanied Evangeline to her 

scheduled visits at OCS’s offices. In February 2015 Duke asked Siri if he could have an 

in-home visit, but Siri told him he would “have to coordinate that with [OCS].” 

In April 2015 Duke was arrested on charges of first-degree sexual assault 

stemming from a 2011 accusation by the sister of his deceased fiancée. OCS took 

custody of the four children who were then living with him. Unable to make bail, Duke 

remained incarcerated until after his trial in April 2018, when he was acquitted. 

In March 2016 Darrence received a neurodevelopmental evaluation which 

indicated that he was autistic; delayed in his verbal, social, and fine motor skills; and 

needed “a stable, able, attentive, long-term home environment.” It is uncontested that 

Darrence had significant needs and that his foster mother Siri and her family provided 

him with more than adequate care during his placement with them. 

After his arrest Duke asked OCS to place Darrence and the four children 

in his household with his sister, Natalya S., who at the time was a licensed foster care 

provider. OCS denied the request as to Duke’s other four children but did not address 

it as to Darrence until over a year later, when it denied the request on the same ground: 

that Natalya first needed to “demonstrate that she could meet [Darrence’s] specialized 

needs by attending his weekly therapy sessions.” Natalya apparently did not follow up. 

The mother of Duke’s eldest son took him to her home out of state, and OCS placed the 

other two boys with their maternal grandmother and placed Duke’s daughter in a foster 

home. 

During Duke’s incarceration he had perhaps five visits with Darrence, 

spread out from August 2016 to September 2017. Siri also made efforts to maintain 

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familial bonds between Darrence and Duke’s other children. She informed OCS of her 

efforts but did not know what became of the information. 

A new OCS caseworker took over Darrence’s case in August 2016. Asked 

about her efforts to work with Duke, she testified that she “communicated with [OCS’s] 

family contact team to ensure that he was getting his quarterly visits with [Darrence]”; 

sent Duke “some correspondence regarding [Darrence]’s needs,” including a medical 

consent form for the anesthesia required for a “special hearing test”; and “had one inperson meeting . . . at the Anchorage jail” on February 3, 2017, when she brought 

Darrence for a visit. She testified that during the visit she and Duke talked about 

Darrence and the services Darrence was getting but “didn’t really talk a whole lot about” 

Duke’s case plan or its objectives. She testified that quarterly visits were all OCS could 

offer incarcerated parents “based on the staff we have” and that an incarcerated parent’s 

frequent moves between correctional facilities “could be a barrier to getting [visitation].” 

She testified that OCS attempted quarterly visits for Duke with Darrence and that she 

“believe[d] [Duke had] been receiving [visits] quarterly”; however, she could personally 

identify only two visitation dates and conceded that she did not “have concrete proof” 

that quarterly visits otherwise occurred. Duke denied that he received quarterly visits. 

The record contains no case plan addressing Duke’s potential reunification 

with Darrence.4 The caseworker testified about her concerns with Duke’s parenting and 

what would be in Duke’s case plan if he had one. She testified that she and Duke “would 

need to case plan together” and that she “would definitely recommend on his case plan 

that [Duke] cooperate with a psychological assessment,” “that he engage fully with 

4 While questioning the caseworker, Duke referred to a case plan pertaining 

to three of his other children and said, “[T]his is the same information on the document 

for [Darrence].” The record does not disclose what document he was referring to; OCS 

does not contend there was a case plan focused on reunifying him with Darrence. 

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[Darrence’s] services,” and that he have “a parent coach.” When Duke asked the 

caseworker whether she thought he was “ready, willing, and able to . . . do the case plan 

and reunite with [his] son,” she replied, “That is something I haven’t had the opportunity 

to assess, because you’ve been incarcerated the duration that I’ve had this case.” 

During Duke’s incarceration, and on his own volition, he completed an 

InsideOut Dad parenting class, took classes on using computers and building a business, 

was trained and certified as a forklift operator, and participated in a Christian 

correspondence program that he testified met his spiritual, mental, and psychological 

needs. He testified that he was about to start the “criminal attitude program” and would 

take “every other program that they have [that is available] to me” before his release. 

OCS filed a petition to terminate Duke’s parental rights to Darrence in June 

2017, and a trial was held over two days in December 2017. The trial involved only 

Duke’s rights, not Evangeline’s, because OCS anticipated that she would consent to an 

adoption. Duke was transported to the courthouse and attended both days of the trial, 

representing himself. OCS called two witnesses, Siri and the OCS caseworker then 

assigned to Darrence. Duke was the sole witness for himself. 

The court placed its decision on the record at the close of trial, finding that 

OCS had met its burden of proof for terminating Duke’s parental rights to Darrence. The 

court found that OCS “met its burden . . . by clear and convincing evidence that the child 

has been subjected to conditions or conduct described in each of the three subsections 

alleged by the state, AS 47.10.011(1), (2), and (9)”: abandonment, incarceration, and 

neglect. The court found by clear and convincing evidence that Duke had not remedied 

the conduct or conditions that placed Darrence at risk: the court found this element was 

“easily met by the fact that you’re in jail, have been for a long time, and that you haven’t 

taken those steps to provide for the child or to protect the child and that the child’s very 

much at risk.” The court found by clear and convincing evidence that OCS made 

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“reasonable efforts trying to get [Duke] involved in a plan and visitation” but that its 

“various efforts were met with less than adequate participation by [Duke] to engage in 

the plan or program and to take those steps to reunite.” Finally, the court found that OCS 

had “proven by a preponderance of the evidence that termination of parental rights is in 

the best interests of the child” because of Darrence’s needs for special care and 

permanency. The court signed a written order the same day summarizing its conclusions 

of law based on the factual findings made on the record. 

Duke appeals. 

III.	 STANDARDS OF REVIEW 

Whether a child is in need of aid is a factual determination,5 and “[w]hether 

OCS has made reasonable reunification efforts is a mixed question of law and fact.”6 We 

review factual findings in CINA cases for clear error,7 and “[w]e apply our independent 

judgment to questions of law.”8

 “Whether the superior court’s factual findings satisfy 

applicable [CINA] statutes and rules is a question of law that we review de novo.”9 

IV.	 DISCUSSION 

A.	 The Finding That Darrence Was A Child In Need Of Aid 

Is Clearly Erroneous. 

Before terminating parental rights, the superior court must “find by clear 

5 Sherman B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 310 P.3d 943, 948-49 (Alaska 2013). 

6 Id. at 949. 

7 Id. 

8 Hooper v. Hooper, 188 P.3d 681, 685 (Alaska 2008). 

9 Sherman B., 310 P.3d at 949 (quoting M.W. v. State, Dep’t of Health &Soc. 

Servs., Office of Children’s Servs., 20 P.3d 1141, 1143 (Alaska 2001)). 

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and convincing evidence that the child ‘has been subjected to conduct or conditions 

described in AS 47.10.011’ and is thus in need of aid.”10 The superior court found that 

Darrence was a child in need of aid on three grounds: abandonment,11 Duke’s 

incarceration,12 and neglect.13 A finding of CINA status under just one statutory 

subsection is enough to support termination.14 But we conclude that the evidence does 

not support CINA status under any one of the three on which the superior court relied. 

1. Abandonment 

Abandonment will support a CINA finding if “a parent . . . has abandoned 

the child as described in AS 47.10.013, and the other parent is absent or has committed 

conduct or created conditions that cause the child to be a child in need of aid.”15 Duke 

does not dispute that Evengeline was absent. Our focus, therefore, is on whether it was 

clear error to find that Duke “abandoned the child as described in AS 47.10.013.” 

A “court may find abandonment of a child if a parent . . . has shown a 

conscious disregard of parental responsibilities toward the child by failing to provide 

reasonablesupport, maintain regular contact, or providenormal supervision, considering 

the child’s age and need for care by an adult.”16 “The statute also provides specific 

10 Id. (quoting AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A)). 

11 AS 47.10.011(1). 

12 AS 47.10.011(2). 

13 AS 47.10.011(9). 

14 Casey K. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 311 P.3d 637, 643 (Alaska 2013). 

15 AS 47.10.011(1). 

16 AS 47.10.013(a). 

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examples of conduct that will be considered abandonment.”17 Here, the superior court 

relied on AS 47.10.013(a)(2), (3), and (4), which provide that abandonment includes 

“instances when the parent . . . , without justifiable cause,” 

(2) has made only minimal efforts to support and 

communicate with the child; (3) failed for a period of at least 

six months to maintain regular visitation with the child; [or] 

(4) failed to participate in a suitable plan or programdesigned 

to reunite the parent or guardian with the child[.] 

We conclude that the evidence does not support an abandonment finding under any of 

these illustrations. 

From the time Duke learned of his possible paternity to the time he was 

incarcerated, he showed his willingness to care for Darrence (though OCS’s concern 

about the protective services reports apparently prevented Darrence’s placement with 

him). Duke voluntarily came forward as the potential father, sought out paternity testing, 

and helped Evangeline amend Darrence’s birth certificate to show his paternity even 

before genetic testing had confirmed it. He sought visitation with Darrence, 

accompanied Evangeline to OCS so he could meet Darrence, and asked Siri for in-home 

visitation. He attended the adjudication trial. 

Once Duke was incarcerated, his direct interaction with Darrence was 

necessarily limited. But OCS never alleged that he failed to provide reasonable support 

during that time. And OCS asserted that it provided all the visitation its resources 

allowed, thus conceding that Duke did not “fail[] for a period of at least six months to 

maintain regular visitation with the child.”18 Duke asserted that while in prison he “never 

17 G.C. v. State, Dep’t of Health &Soc. Servs., Div. of Family &Youth Servs., 

 P.3d 648, 651 (Alaska 2003) (citing AS 47.10.013(a)(1)-(8)). 

18 AS 47.10.013(a)(3). 

67

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forgot about [his] kids” and sent them letters and pictures through OCS; OCS did not 

dispute this. 

As its “main” justification for the abandonment finding, the superior court 

identified Duke’s failure to “participate in a suitable plan or program designed to reunite 

the parent . . . with the child.” It specifically found that “OCS’s various efforts were met 

with less than adequate participation by [Duke] to engage in the plan or program and to 

take those steps to reunite.” But the record contains no case plan addressing Duke’s 

potential for reunification with Darrence, and OCS’s caseworker appeared to concede 

at trial that one did not exist. This was a significant lapse. By statute, OCS’s “duty to 

make reasonable efforts . . . includes the duty to . . . identify family support services that 

will assist the parent . . . in remedying the conduct or conditions in the home that made 

the child a child in need of aid” and “actively offer . . . and refer the parent” to those 

services.19 

In Frank E. v. State, Department of Health & Social Services, Division of 

Family & Youth Services, as here, the father was incarcerated during a significant part 

of the State’s involvement with his children;20 the State did create a case plan, but it 

involved treatment and classes “that could only be taken after his release from 

incarceration,” which was scheduled to occur after the termination trial.21 We held that 

“the state’s failure to identify and offer programs to [the father] before the planned 

termination would generally violate the state’s duty under AS 47.10.086,” but “the 

failure was harmless in this case because the superior court continued the . . . termination 

19 AS 47.10.086(a)(1), (2). 

20 77 P.3d 715, 716 (Alaska 2003). 

21 Id. 

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trial specifically to allow [the father] an opportunity to complete his case plan.”22 In 

other cases, when preparation of a case plan was unreasonably delayed, we have still 

affirmed reasonableefforts determinations madeon thebasis of OCS’s involvement with 

the family in its entirety.23 But we have never excused OCS’s failure to create any case 

plan at all.24 

Here the evidenceis undisputedthatOCSdid not create a relevant case plan 

for Duke, did not engage him in case planning, and during the 17 months before the 

termination trial met with him in person only once, when there was no significant 

discussion of a case plan or its possible objectives. We cannot affirm a finding that Duke 

failed to participate in a case plan that did not exist on paper and was not even explained 

to him in theory. The superior court’s abandonment findings are clearly erroneous and 

cannot form the basis for a determination that Darrence was a child in need of aid. 

2. Neglect 

Neglect may be the basis for a CINA finding if “conduct by or conditions 

created by the parent . . . have subjected the child or another child in the same household 

to neglect.”25 “[T]he court may find neglect of a child if the parent . . . fails to provide 

the child with adequate food, clothing, shelter, education, medical attention, or other care 

22 Id. at 720. 

23 See Dashiell R. v. State, Dep’t of Health &Soc. Servs., Office of Children’s 

Servs., 222 P.3d 841, 844-45, 849-50 (Alaska 2009) (case plan not developed until 

almost two years after OCS assumed custody of children). 

24 The record implies the existence of case plans involving Duke’s other 

children; his caseworker’s testimony about Duke’s need for a psychological assessment 

apparently addressed a requirement of those plans. But reference to those plans appears 

in the trial transcript only through Duke’s questions about them when he was crossexamining the caseworker; they were not in evidence. 

25 AS 47.10.011(9). 

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and control necessary for the child’s physical and mental health and development, 

though financially able to do so or offered financial or other reasonable means to do 

so.”26 

We conclude that the evidence does not support a finding of CINA status 

based on neglect for two reasons. First, Darrence was in foster care with Siri’s family 

fromthe time Duke learned of his existence through trial, and there was therefore no time 

when Duke was responsible for Darrence’s care and failed to provide it. Second, to the 

extent Duke remained responsible for Darrence’s support, there was no evidence he was 

financially able to provide more than he did. 

Whenachild is committed to OCS’s carefollowing an adjudication hearing 

under AS47.10.080(c)(1), “arelationship oflegal custody exists” which “imposes on the 

department . . . the responsibility of physical care and control of the child, the 

determination of where and with whom the child shall live, the right and duty to protect, 

nurture, train, and discipline the child, the duty of providing the child with food, shelter, 

education, and medical care, and the right and responsibility to make decisions of 

financial significance concerning the child.”27 The parent’s responsibilities at that point 

are the “residual” ones identified in AS 47.10.084(c), which as relevant here include “the 

. . . responsibility of reasonable visitation” and “the responsibility for support.” 

With regard to visitation, the evidence does not support a finding that Duke 

failed in his responsibility; as described above, he sought visitation as soon as he learned 

of his possible paternity and exercised it in prison as often as OCS was able to provide 

26 AS 47.10.014. 

27 AS 47.10.084(a). 

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it.28 As for “the responsibility for support,” the day-to-day responsibility for Darrence’s 

care was reposed by law in OCS and delegated to Siri.29 To the extent Duke remained 

responsible for financial support, he testified that he was “still paying child support while 

in custody,” which OCS did not dispute. Furthermore, OCS had the burden of proving 

that Duke failed to provide support “though financially able to do so.”30 The evidence 

at trial showed that Duke was incarcerated and unable to post bail; he testified that he had 

saved up $10,000 toward his bail but “one of [his] third parties . . . ran off with [his] 

money.” In prison he earned 50 cents an hour when he worked, for a total of perhaps 

“18 to $20 a week.” We see no basis in the record for a finding that Duke failed to 

provide support that he was financially able to provide.31 

We conclude that it was clear error to find that Duke’s neglect caused 

Darrence to be a child in need of aid. 

3. Incarceration 

A parent’s incarceration may be the basis for a CINA finding if “a parent 

. . . is incarcerated, the other parent is absent or has committed conduct or created 

28 The OCS caseworker who testified at the termination trial conceded that a 

paucity of visitation due to OCS’s overstretched resources “may feel like a punishment 

to the parents” but did not amount to “neglect to the kids, no.” 

29 AS 47.10.084(a) (setting out OCS’s responsibilities to child in its custody 

and its power to delegate them). 

30 AS 47.10.014 (emphasis added). 

31 OCS also argues that neglect may be found in Duke’s “refus[al] to sign the 

consent forms” necessary for Darrence’s tonsillectomy and adenoidectomy “without 

altering them.” According to OCS, Duke signed the consent forms but “crossed off the 

line that stated the doctor is not responsible for anything that might go wrong during 

surgery.” The superior court made no findings about this incident, so we need not decide 

whether it would be sufficient by itself to justify a finding of neglect. 

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conditions that cause the child to be a child in need of aid . . . , and the incarcerated 

parent has not made adequate arrangements for the child.”32 Duke does not dispute that 

he was incarcerated, nor does he contest the court’s finding that Evangeline committed 

conduct or created conditions that caused Darrence to be in need of aid. Duke contests 

only the finding that while incarcerated he failed to make adequate arrangements for 

Darrence. 

We agree with Duke that the record does not support that finding. Darrence 

had been placed in the care of Siri, whom Evangeline personally selected to care for him, 

in October 2014, a month before Duke’s paternity was confirmed. She was still caring 

for Darrence at the time of the termination trial and testified that she was “absolutely” 

willing to continue doing so. OCS had no question about the adequacy of this 

arrangement: in closing argument its counsel said that Darrence was “very fortunate to 

have the foster parents that he has who are able to provide him with the day-to-day 

supervision that he needs, who are able to get him to all the appointments that he has to 

go to, to receive all the services that he needs, and who are willing to provide that care 

for him long term.” In short, though Siri was not Duke’s choice for Darrence’s 

caregiver, there was no question but that he left Darrence in good care when he went to 

prison. 

It is true, as OCS argues, that Duke’s own choice did not work out. After 

he was arrested in April 2015, Duke asked OCS to place his children with his sister 

Natalya, who was a licensed foster care provider. The court found that OCS denied the 

request as to Darrence because Natalya had lost her foster care license and also because 

Darrence “just has such extraordinarily high needs.” But the determination that Natalya 

could not meet Darrence’s special needs was not made until over a year after Duke made 

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32 AS 47.10.011(2). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

his placement request, when the new caseworker took over his file in August 2016. The 

new caseworker denied his request based on an earlier determination that Natalya could 

not meet the special needs of the other four children who had been living with Duke at 

the time of his arrest — and “pending her ability to demonstrate that she could meet 

[Darrence’s] specialized needs by attending his weekly therapy sessions,” which 

apparently did not occur. According to the caseworker, Natalya lost her foster care 

license nearly a year later, in June 2017; the loss of her license played no part in OCS’s 

decision to deny Duke’s placement request. 

Assuming that Natalya was indeed an inappropriate placement at the time 

of OCS’s denial, we still cannot conclude that the evidence supported a finding that Duke 

failed to make “adequate arrangements for the child.” His request that Darrence be 

placed with Natalya, a licensed foster care provider, was pending for over a year before 

OCS denied it. There was no evidence that OCS, having finally sent Natalya a denial, 

informed Duke of its action and asked him to provide other names; placement was not 

among the limited topics OCS’s caseworker described raising with Duke while he was 

incarcerated.33 

33 The caseworker testified that “we just talked a little bit about [Darrence’s] 

services that he was in. We didn’t really talk a whole lot about case plan specific object 

or objectives. It was more just about [Darrence].” In Josh L. v. State, Department of 

Health & Social Services, Office of Children’s Services, the dissent noted that 

“[a]lthough we do not need to decide the question here, it is difficult to believe that in the 

non-ICWA context OCS’s reasonable efforts duty does not include assisting an 

incarcerated parent in remedying the lack of an alternative placement for a child when 

the parent provides the names of potential placements.” 276 P.3d 457, 471 (Alaska 

2012) (Winfree, J., dissenting). We need not decide the issue here either, but we note 

that the record is bare of any indication that OCS even informed Duke of the status of his 

effort to make “adequate arrangements for [the] child,” thus prompting him to make 

another suggestion. 

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We conclude that it was clear error to find that Darrence was a child in need 

of aid on grounds that Duke, when incarcerated, failed to make adequate arrangements 

for his care. Because we cannot affirm any of the court’s three findings supporting 

CINA status, we reverse its decision that Darrence was a child in need of aid. 

B.	 The Superior Court Clearly Erred In Determining That The State 

Made Reasonable Efforts To Reunify The Family. 

Termination of parental rights is also predicated on a finding, by clear and 

convincing evidence, “that OCS made timely, reasonable efforts to provide family 

support services designed to prevent out-of-home placement or enable the child’s safe 

return to the family home.”34 “By statute, OCS’s duties include the duty to: (1) identify 

family support services that will assist the parent in remedying [his or] her conduct; (2) 

actively offer those services to the parent and refer the parent to them; and (3) document 

the department’s actions.”35 “The requirement that OCS offer reunification services ‘is 

fulfilled by setting out the types of services that a parent should avail . . . [himself] of in 

a manner that allows the parent to utilize the services.’ ”36 Duke contends that OCS’s 

efforts to reunify him and Darrence were “virtually non-existent.” 

Because we are reversing the superior court’s finding that Darrence was a 

child in need of aid, we need not review OCS’s remedial efforts in detail. But we do note 

the insufficiency of the evidence supporting the superior court’s conclusion that OCS 

made “reasonable efforts trying to get [Duke] involved in a plan and visitation.” As 

34 Sylvia L. v. State, Dep’t of Health &Soc. Servs., Office of Children’s Servs., 

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

35 Id. (citing AS 47.10.086(a)). 

36 Id. (alteration in original) (quoting Audrey H. v. State, Office of Children’s 

Servs., 188 P.3d 668, 679 (Alaska 2008)). 

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explained above, there was no case plan directed toward reunifying Duke and Darrence; 

that omission itself may be fatal to a reasonable efforts finding.37 

As for visitation, Duke initiated it in late 2014 and early 2015, and once he 

was incarcerated visitation occurred as often as OCS was able to facilitate it. We have 

noted that “the scope of OCS’s duty to make reasonable efforts is affected by a parent’s 

incarceration,”38 and that efforts by the Department of Corrections count toward the 

reasonable efforts expected of OCS.39 But here the caseworker testified at the December 

2017 trial that her work with Duke since she took over his case in August 2016 included 

only (1) inquiring of OCS’s “family contact team to ensure that he was getting his 

quarterly visits with [Darrence],” (2) sending Duke “some correspondence regarding 

[Darrence’s] needs,” and (3) “one in-person meeting . . . at the Anchorage jail on 

February 3rd” during a visit. The caseworker also testified about Duke’s need for a 

psychological assessment — a requirement of a different case plan — but explained she 

was unaware of any provider who would perform the assessment while Duke was in 

prison. The superior court noted its concerns with this issue, observing that “OCS didn’t 

have a very good answer frankly as to why a mental health assessment of [Duke] had not 

been performed,” and “[i]f this case turned solely on that, I would find against OCS.” 

37 See Frank E. v. State, Dep’t of Health & Soc. Servs., Div. of Family & 

Youth Servs., 77 P.3d 715, 720 (Alaska 2003) (noting that “failure to identify and offer 

programs to [the parent] before the planned termination would generally violate the 

state’s duty” to make reasonable efforts). 

38 Barbara P. v. State, Dep’t of Health & Soc. Servs., 234 P.3d 1245, 1262 

(Alaska 2010). 

39 Dashiell R. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 222 P.3d 841, 849 (Alaska 2009). 

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In A.M. v. State we affirmed an active efforts finding when the father 

received sex offender treatment in prison and the child protection agency “maintained 

contact with [the father] while he was in treatment, generally encouraged his treatment 

efforts, and assisted him in arranging visitation with his children.”40 In Dashiell R. v 

State, Department of Health & Social Services, Office of Children’s Services, we 

affirmed an active efforts finding when the father received classes and therapy while 

incarcerated, “OCS staff communicated with [the father] during his incarceration,” and 

“OCS arranged for written exchanges and telephone visits between [the father] and the 

children.”41 

In this case, OCS’s efforts while Duke was imprisoned — at least as 

revealed by the evidence at trial — were less extensive than those we approved in A.M. 

and Dashiell R. While Duke did engage in parenting, vocational, and religious 

instruction while incarcerated, it was on his own initiative rather than in response to any 

guidance from OCS about what he needed to do to improve his chances of reunification. 

OCS’s minimal engagement with Duke, combined with the lack of a relevant case plan, 

convince us it was clear error to find that OCS had made reasonable efforts toward 

reunification. 

V. CONCLUSION 

We REVERSE the termination of Duke’s parental rights with respect to his 

son Darrence. 

40 945 P.2d 296, 306 (Alaska 1997). 

41 222 P.3d at 850. 

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