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

JIMMY E.,

Appellant,

v.

STATE OF ALASKA, DEPARTMENT

OF HEALTH & SOCIAL SERVICES,

OFFIC E OF CHILDREN’S

SERVICES,

Appellee.

ALLIE P.,

Appellant,

v.

STATE OF ALASKA, DEPARTMENT

OF HEALTH & SOCIAL SERVICES,

OFFICE OF CHILDREN’S

SERVICES,

Appellee. )

) Supreme Court Nos. S-18479/18480

(Consolidated)

Superior Court No.

3PA- 20 -00030/00102 CN

(Consolidated)

O P I N I O N

No. 7653

– May 12, 2023 )

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) Superior Court No.

3PA- 20 -00100/00101/00030/00102 CN

(Consolidated) )

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

Judicial District, Palmer, Jonathan A. Woodman, Judge.

Appearances: Olena Kalytiak Davis, Anchorage, for

Appellant Jimmy E. Chris Peloso, Peloso Law, Juneau, for

Appellant Allie P. Laura Wolff, Assistant Attorney General,Anchorage, and Treg R. Taylor, Attorney General, Juneau,

for Appellee.

Before: Maassen, Chief Justice, Carney, Borghesan, and

Henderson, Justices. [Pate, J., not participating.]

HENDERSON, Justice.

INTRODUCTION

The mother of four children and the father of the two youngest of those

children challenge the termination of their parental rights. The father claims Alaska

Native heritage and contends that his children are Indian children under the Indian Child

Welfare Act (ICWA). The parents argue that the father provided the parties and the

superior court a sufficient reason to know his two children are Indian children under

ICWA and that the Office of Children’s Services (OCS) failed to conduct the required

diligent inquiry based upon the information he provided. The mother raises additional

arguments related to the termination of her rights as to her two older children.

We hold that the father did provide a sufficient reason to know that the

two youngest children are Indian children and that OCS did not conduct a sufficient

inquiry. We therefore vacate the termination of the parents ’ rights as to the two

younge st children and remand for further proceedings. We reject the mother’s

additional challenges and th us affirm the court’s order terminating the mother’s parental

rights with respect to her two older children.

- 2

- 7653FACTS AND PROCEEDINGS

A. Facts

1. Family history

Allie P. and Jimmy E. had two children together: Ulysses E., now three

years old, and Tamera E., now seven years old. 1 Allie also had two children with Jeff

M. : Martha M., now 15, and George M., now 12. 2

Allie has a history of substance abuse and related OCS involvement. After

a period of sobriety beginning in 2012, she relapsed in 2016, around the time the three

eldest children were initially removed from her home. A hair follicle test for Tamera

in 2016 was positive for amphetamine and methamphetamine. Th at initial OCS case

ultimately resulted in Jimmy and Allie agreeing to the children ’s placement in a

guardianship with Allie’s mother. In June 2018, both Allie and Jimmy entered a

methadone treatment program for opioid addiction.

2. Removal of Ulysses and termination of the guardianship

Ulysses was born in September 2019. Shortly thereafter, OCS received

reports that the baby was exposed to drugs and domestic violence in the home and began

investigating the family in November and December. In February 2020, OCS filed a

non-emergency petition and took Ulysses into its custody. In mid-February 2020, a

court-ordered hair follicle test showed the presence of methamphetamine,

amphetamine, and marijuana in the baby’s hair. Allie and Jimmy submitted to OCS

urinalys es that month and tested positive for methamphetamine, amphetamine, and

marijuana.

1 We use pseudonyms in this opinion to protect the privacy of the family

members.

2 Jeff M. relinquished his parental rights to Martha in October 2021 and

consented to George’s adoption. He is not participating in this appeal.

- 3

- 7653At th at time, Allie’s mother was still the legal guardian of Tamera, Martha

,

and George

. During spring 2020 OCS became increasingly concerned about the

guardianship of the older children

. The agency received and investigated reports that

Allie’s mother expos ed the children to domest ic violence in her home and allowed

unsupervised contact between the children and Allie and Jimmy

. OCS filed an

emergency petition for custody of th ose children in June 2020.

OCS created individualized case plans for Allie and Jimmy , directing both

parents to undergo substance abuse and domestic violence assessments and follow the

resulting recommendations; participate in random drug testing at an OCS approved

facility; and engage in parenting classes and family contact. OCS also instructed the

parents to continue participating in their current methadone treatment program.

3. The parents ’ continued substance abuse

Neither Allie nor Jimmy demonstrated any progress in addressing their

substance abuse. T he parents did not attend OCS scheduled drug t esting from March

to September 2020. The record does not indicate whether OCS scheduled any drug

tests after that date.

While the parents received some treatment from the methadone clinic they

attended

, they did not provide releases of information that would allow OCS to access

their treatment records and requested instead that the clinic send letters confirming only

their participation in treatment. Following a court order, t he clinic eventually provided

records spanning from June 2018 to April 2021 fo r both parents. The records confirmed

that the parents consistently received their methadone doses during that time

. But the

records also demonstrate d that the parents abused substances during that period

.

Ur inalysis results show ed that both parents used illegal drugs while Allie was pregnant,

in the months after Ulysses’s birth, and into April 2021

. Allie tested positive for

amphetamine, opioids, and marijuana consistently throughout treatment. Additionally

Allie refused to test on multiple instances in 2020 and 2021. Jimmy also consistently

test ed positive for amphetamine and opioid s and refused to test several times in 2020

- 4

- 7653and 2021. Jimmy and Allie were also reportedly hostile to clinic staff and occasionally

missed counselin g appointments

.

4. Martha’s runaway status

After OCS reassumed custody of the older children in June 2020, Martha

frequently ran away from her foster home

. T hroughout most of the CINA proceedings,

OCS reported that Martha was in “runaway” status

.

In Novemb er 2020, law enforcement officers stopped a vehicle Jimmy

was driving with Allie in the passenger seat and Martha in the backseat. The officers

were investigating an allegation of shoplifting at a local store. Allie was uncooperative

and refused to give the officers Martha’s name , but Jimmy eventually provided it.

When officers searched the car, they found the stolen merchandise. They also found

heroin, methamphetamine, marijuana, and drug paraphernalia in Allie’s purse

. Allie

was later charged with dr ug possession, theft, and trespass.

OCS caseworkers and law enforcement officers also later testified about

several incidents in 2021

, whe n they found Martha with her parents or otherwise

evading OCS. In June 2021, for example, Martha ran away from her f oster home

, and

OCS caseworkers heard she was staying with her mother. Caseworkers subsequently

found Allie and Martha together and tried to convince Martha to come back with them,

but Allie told Martha to get in a car with her and they drove away.

Just two months later, in August 2021, Wasilla Middle School notified

OCS that Allie had registered Martha for school there

. OCS caseworkers visited Martha

and tried to convince her to return with them to her foster home

. Martha called Allie

during this inter action, and one caseworker could hear Allie’s voice over the phone

telling Martha to not cooperate with OCS and saying the OCS workers were liars.

On four other occasions, law enforcement officers responded to incidents

involving Martha. In August 2021 a trooper found Martha in a stolen car. Allie arrived

and identified herself as Martha’s mother, but did not inform the officers that Martha

was in OCS custody. Martha left the scene with Allie. In September 2021 officers

- 5

- 7653visited Allie and Jimmy’s home, after a report from OCS that a girl matching Martha’s

description had been seen running from their home and going to a neighbor ’ s house for

help. Allie refused to let the officers in and told them she did not know where Martha

was. In December 2021 officers found Martha hiding in a motel room after reports of

a disturbance involving a man, woman, and female child. Officers took Martha to the

OCS office.

Finally

, just weeks before the termination trial started, officers detained

Martha after she had gotten in to a fight. An involved officer informed OCS that Martha

appeared to be under the influence and they had found her in a home with empty alcohol

bottle s and found marijuana and associated para phernalia in her purse. She was

“stumbling and staggering” while she was trying to walk into the OCS office. Martha

slept for a few hours in the OCS office and then left.

B. Proceedings

1. Initial ICWA inquiries

At the outset of these CINA proceedings

, the parties proceeded as if

ICWA may apply to Tamera and Ulysses based on Jimmy’s po ssible tribal affiliation

. 3

When OCS first filed its non

- emergency petition for custody of Ulysses, it noted that

Jimmy’s tribal affiliation was “unknown.” Later in June 2020, when OCS removed the

other three children from the guardianship, it indicated Jimmy’s tribal affiliation as

potentially with Nome Eskimo Community

.

In February 2020, OCS sent inquiry letters to the Alaska Regional

Director of the Bureau of Indian A ffairs (BIA), Tanana Chiefs Conference

, and Nome

Eskimo Community

, notifying them that Ulysses may be an Indian chil d. Each letter

listed the parents’ and Ulysses’s names and birthdates. The letter also included Allie’s

3 There is no indication that either Jeff M. or Allie is affiliated with any tribe.

Therefore, the ICWA inquiri es were only focused on Jimmy’s children, Tamera and

Ulysses.

- 6

- 7653parents’ names and birthdates

, but listed Jimmy’s parents as unknown

. In June 2020

OCS sent a similar communication to the BIA, Tanana Chiefs Conference, and Nome

Eskimo Community regarding Tamera’s potential status as an Indian child

.

At the emergency probable cause hearing in June 2020, OCS told the court

that Tamera “may be ICWA” because of Jimmy’s potential affiliation with Nome. At

an August status hearing, OCS reported that the ICWA inquiry had come back negative

from Nome for Ulysses, and therefore “it wouldn’ t be for [ Tamera ] either.” Nome’s

response is not in the record. Jimmy insisted that his children are Native

, and that

Tamera was “ registered ” and Ulysses was eligible to be registered

.

In September 2020

, OCS reported that it was “still trying to establ ish

whether or not this is actually ICWA.” After the Nome Eskimo Community reported

that the children were not members, OCS investigated “another potential tribe.” During

these hearings neither Jimmy nor his attorney corrected OCS when it reported

contac ting the Nome Eskimo Community

. Throughout the fall of 2020, the court

indicated that ICWA “may” apply to Ulysses and Tamera.

2. Contested probable cause hearing

The court held a contested probable cause hearing in February 2021.

The re, the court heard testimony about the parents’ drug use and criminal activity since

the children were removed. Three OCS employees also testified about the status of the

reunification efforts and reported that the parents were not wi l ling to engage in their

ca se plans except for visitation.

The court and parties once again addressed ICWA during this probable

cause hearing. The superior court asked whether ICWA applied. OCS told the court

that after initial research, the “checks were run again where [OCS was] told to” and it

researched Tamera’s file. OCS reported that it did not find that any of the children were

Indian children.

Jimmy interjected, telling the court that the “children are most definitely

[ICWA]” because he was “one

- eight h Native ” and the chi ldren “fit the criteria” for

- 7

- 7653enrollment eligibility in a tribe. The court asked Jimmy if he was a tribal member, and

he responded that he was not

. But Jimmy insisted that his children were eligible to be

enrolled and further stated that he is a Cook Inlet Region, Incorporated (CIRI)

descendant through his mother.

The court explained to Jimmy that ICWA only applied to his children if

they were enrolled in a tribe , or if he was enrolled and they were eligible to be enrolled.

After this exchange the co urt found that ICWA did not apply and that there was

probable cause to believe that all four children were in need of aid.

3. Further proceedings and termination trial

At a permanency hearing and pretrial conference in March 2021, OCS

informed the court it was planning to file a termination petition in the near future. The

court wanted to ensure that the parents understood what they could do to prevent this,

so t he court directed OCS to read the specifics of each case plan aloud during the

hearing

. Allie o bjected to many aspects of the plan , arguing OCS was not allowed to

dictate her provider or require her to participate in treatment outside the methadone

clinic

, but t he court explained to Allie the importance of using the recommended

providers, participat ing in the case plan, and releasing information to OCS. Jimmy was

present at this hearing but did not comment on the case plan.

In May 2021

, OCS filed a termination petition as to all four children.

Relevant to this appeal, the petition alleged that the children were in need of aid due to

abandonment and substance abuse. 4 The superior court held a combined adjudication

and termination trial in early 2022.

At trial the court heard the testimony of l aw enforcement officers

describing Martha’s runaway status. The court also heard from the caseworker who

had worked with the family the longest , who testified extensively about the family and

- 8

- 7653 4 AS 47.10.011(1), (10).her efforts to provide services. She described her challenges reaching the parents to

discuss case planning

, including that every conversation she had with Allie about case

planning “devolved into screaming ” and that Jimmy was hard to reach but “more

cooperative

. ” Because of these difficulties, caseworkers had to cr eate and update case

plans without the parents’ input. The caseworker further testified that neither parent

had made any progress on completing their case plans, aside from consistently

participating in visitation.

The caseworker also indicated that she had emailed Jimmy in August 2021

asking to “get together and work on getting . . . his kids Certificate of Degree of Indian

Blood [ CID’s ] because he had mentioned that they were Alaska Native.” 5 The OCS

caseworker d id not remember Jimmy replying , and it was unclear whether Jimmy had

attempted to reply by email

.

Allie did not testify at the termination trial. Jimmy testified on the last

day about OCS’s efforts and his sobriety. Jimmy claimed that he had never received a

copy of the case plan, not even b y email. He also testified that even though his phone

was always working, OCS only called him once and they would call Allie instead.

On June 28, 2022, before closing arguments, Jimmy’s attorney again

raised the issue of whether ICWA applied

. Jimmy’s co unsel asked that Jimmy be able

to testify that his mother is a CIRI shareholder, he receives medical care at Alaska

Native Medical Center (ANMC)

, and his children are also eligible to register and

receive ANMC services. The attorney pointed to the fact th at Jimmy receives primary

5 A Certificate of Degree of Indian or Alaska Native Blood is issued by the

Bureau of Indian Affairs, based on descent from family members who were enrolled

members o f federally recognized tribes. See U.S. D EP ’ T OF THE I NTERIOR

, B UREAU OF

I NDIAN A FFS

., Request for Certificate of Degree of Indian or Alaska Native Blood,

https://www.bia.gov/sites/default/files/dup/assets/public/raca/online_forms/pdf/1076

- 0153_CDIB%20For m_Expires%2011.30.2024_508.pdf

.

- 9

- 7653care from ANMC and that OCS was on notice of this fact through his methadone clinic

records as of April 2021

. Jimmy’s attorney further argued that because Jimmy received

services at ANMC, he either had to have a CID or be a membe r of a tribe.

The superior cour t determined that this information did not show that the

children were Indian children under ICWA because i t did not tend to establish that

Jimmy was an enrolled member of a tribe or that the children we re enrolled or eligible

to be members of a tribe. Citing Bruce L. v. W.E.

, 6 the superior court further concluded

that Jimmy was responsible for coming forward with evidence that ICWA applies and

that it was not error to ignore ICWA’s mandates in the absence of such evidence

.

Jimmy continued to argue that ICWA applied, but t he court reiterated its conclusion

that the children were not Indian children under the statute.

4. Superior court’s ruling

The superior court terminated Allie ’s and Jimmy’s parental rights. The

court first stated that none of the children in the case were Indian children as defined by

ICWA because no party had argued the children were members of a tribe and Jimmy

had only argued that he was eligible for membership in an unkn own tribe

. The court

further noted that Jimmy never argued that either he or his children were enrolled in a

tribe. The court determined that OCS had no duty to investigate when no party has

come forward with evidence that ICWA applied

. T o the extent th ere was any duty to

investigate or provide noti c e in this case

, the court held that OCS had fulfilled that duty

.

The superior court further found that the children were in need of aid due

to abandonment and substance abuse. Related to substance abuse, th e court emphasized

the parents’ many positive drug tests through the methadone clinic. The court also

found that neither of the parent s had made any progress whatsoever on his or her case

6 247 P.3d 966, 977 (Alaska 2011) (“ Other courts have held that if the

requisite party does not come forward with evidence that ICWA applies, it is not error

to ignore ICWA ’ s mandates. ”).

- 10

- 7653plans, meaningfully engaged in services that OCS referred them to, or cooperated with

OCS to demonstrate any period of sobriety, and therefore that neither parent had

remedied their substance abuse. The court further determined that OCS’s efforts were

reasonable in this case, emphasizing OCS’s continued efforts to communicate with the

parents despite the parents’ continued refusal to participate in case planning

.

Finally, the superior court found that it was in the children’s best interest s

to terminate Jimmy ’s and Allie’s parental right s. Martha argued at trial that it was not

in her best interests because terminating Allie’s rights at this time would leave her

“ essentially an orphan. ” The superior court did not find this argument persuasive,

noting that terminating Allie’s rights gave OCS a better chance at finding Martha a

permanent placement that was acceptable to her and that would protect her from further

exposure to substance abuse.

The parents appeal.

STANDARD OF REVIEW

Interpreting ICWA and BIA regulations presents questions of law that we

review using our independent judgment. 7 W hether the superior court’s CINA findings

satisfy the applicable statutes is also a question of law. 8

A superior court’s findings regarding whether a child is in need of aid,

whether the parents have remedied the ir conduct, and whether termination of parental

rights is in the child’s best interests are factual questions that we review for clear error. 9

“ Findings of fact are clearly erroneous if a review of the entire record in the light most

7 State , Dep’t of Health & Soc. Servs., Off. of Child.’s Servs. v. Cissy A.

, 513 P.3d 999, 1008 (Alaska 2022).

8 Sherman B. v. State , Dep’t of Health & Soc. Servs., Off

. of Child.’s Servs.

, 310 P.3d 943, 949 (Alaska 2013).

9 Id. at 948-49.

- 11

- 7653favorable to the prevailing party below leaves us with a definite and firm conviction

that a mistake has been made.” 10

Whether OCS made reasonable reunification efforts toward a family is a

mixed question of law and fact. 11 We review factual questions under the clearly

erroneous standard and legal questions using our independent judgment. 12

DISCUSSION

A. Jimmy Gave OCS A Reason To Know The Children Are Indian

Children And OCS Did Not Inquire With Sufficient Diligence.

First, we hold that Jimmy provided OCS a “reason to know” that his

children are Indian children when he informed OCS of specific Native heritage,

indicated that one of the children was “registered” and the other was eligible to be

registered, and provided the additional information that his mother was a CIRI

shareholder. Second, we hold that the superior court erred in failing to confirm whether

OCS exercised due diligence in investigating whether ICWA applied. Because the

record contains no information suggesting that OCS investigated some of the updated

and specific information provided by Jimmy, the court could not have confirmed a

diligent inquiry by OCS.

1. ICWA requires state agencies to provide notice and inquire

with potentially involved tribes when a party provides a

“reason to know” a child is an Indian child.

ICWA provides protections for Indian children and tribes in child custody

proceedings. An Indian child is defined as either “ a member of an Indian tribe ” or

“ eligible for membership in an Indian tribe and

. . . the biological child of a member of

10 Id . at 949.

11 Id.

12 Id.

- 12

- 7653an Indian tribe.” 13 In any involuntary child custody proceeding, i f a court “ knows or

has reason to know that an Indian child is involved

, ” the party seeking the termination

of parental rights to an Indian child must notify the Indian child’s tribe or the potential

tribe

. 14

Federal regulations require that, at the beginning of an involuntary

custody proceeding, the court must ask whether any participant “knows or has reason

to know that the child is an Indian child.” 15 The regulations also contempl ate that

information relating to a child’s t ribal status may become apparent later in the case and

instruct courts to tell parties to come forward with any subsequent information gained. 16

Federal regulations define six instances in which the court has “re ason to

know ” a child is an Indian child

. 17 One instance is when “ [ a ] ny participant . . . informs

the court that it has discovered information indicating that the child is an Indian child.” 18

If there is reason to know, but the court does not have sufficie nt evidence to determine

whether the child is an Indian child, the party seeking termination of parental rights

must use “due diligence to identify and work with all of the Tribes of which there is

reason to know the child may be a member ” or eligible for membership. 19 “ [ U ] nless

13 25 U.S.C. § 1903(4). The statute also requires that an Indian child must

be under 18 and unmarried.

14 Id. § 1912(a); Indian Child Welfare Act Proceedings, 25 C.F.R. §

23.111(b) (2023).

15 25 C.F.R. § 23.107(a).

16 Id.

17 Id. § 23.107(c).

18 Id. § 23.107(c)(2).

19 Id. § 23.107(b)(1).

- 13

- 7653and until it is determined on the record that the child does not meet the definition of an

‘Indian child,’ ” the court must treat the child as an Indian child. 20

If there is reason to know a child is an Indian child, but the identity of the

tribe cannot be ascertained, the agency must send notice to the regional BIA director. 21

The notice must include “as much information as is known regarding the child’s direct

lineal ancestors.” 22 The BIA cannot make a determination of tribal membership but can

identify tribes to contact. 23 Additionally, if a t ribe does not respond to a state agency,

the agency must contact the BIA for assistance. 24

The regulations provide specific guidelines for what an agency must

include in the n otice it send s to trib es and the BIA . The notice must include, in plain

language, information about the child’s birthdate , the parents ’ b irthdates , and, “[i]f

known, the names, birthdates, birthplaces

, and Tribal enrollment of other direct lineal

ancestor s of the child, such as grandparents.” 25 The notice must include a statement of

the rights of the t ribe if the child is a member. 26

The BIA guidelines recommend that an agency provide as much

information as possible in notices. 27 This information can aid t ribe s in determining

20 Id. § 23.107(b)(2).

21 Id. § 23.111(e).

22 Id.

23 Id.

24 Id. § 23.105(c).

25 Id. § 23.111(d)(1)-(3).

26 Id. § 23.111(d)(6)(iii ).

27 U.S. D EP ’ T OF THE I NTERIOR

, B UREAU OF I NDIAN A FF S

., G UIDELINES FOR

I MPLEMENTING THE I NDIAN C HILD W ELFARE A CT 21 (2016), https://www.bia.gov/sites

/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf [hereinafter BIA G UIDELINES ].

- 14

- 7653whether the child is a member, decreasing the likelihood of any delay or future

disruption. 28 Among other things, the BIA recommends that agencies provide ancestry

or family charts for both parents and the current addresses of the par ents and any

extended family. 29

T he tribe makes the determination whether the child is a member, or

whether the child is eligible for membership and the biological parent is a member. 30

But per the BIA guidelines, “ the court must ultimately determine whethe r the child is

an Indian child for purposes of the child

- custody proceeding.” 31 Ideally this

determination is based on information from the potentially involved tribes. 32 If a t ribe

does not respond, the BIA recommends that the court only make a decision a fter a n

agency has made multiple requests for a response and sought the assistance of the

BIA. 33 This is because without a proper inquiry, the court cannot accurately determine

whether ICWA applies. 34 The court must confirm

, with “a report, declaration, or

testimony included in the record

, ” that the agency pursuing the custodial action used

due diligence to identify the child’s potential tribe

. 35

This court has recognized that BIA guidelines are important and persuasive, but not

controlling. See Bruce L. v. W.E. , 247 P.3d 966, 975 n.22 (Alaska 2011).

28 BIA G UIDELINES

, supra note 27, at 21.

29 Id.

30 25 C.F.R. § 23.108(a).

31 BIA G UIDELINES

, supra note 27, at 22.

32 Id.

33 Id. ; see In re D.J. , 862 S.E.2d 766, 772-73 (N.C. 2021).

34 In re D.E. , 168 N.E.3d 111, 128-29 (Ohio. App. 2021).

35 25 C.F.R. § 23.107(b)(1).

- 15

- 76532. Jimmy provided OCS and the court a reason to know his

children are Indian children.

W e have not yet considered w hat constitutes a “reason to know” sufficient

to trigger the duty to conduct a due diligence inquiry into whether a child is an Indian

child for purposes of ICWA

. Other state courts have addressed this issue, and their

reasoning is helpful. We recognize a vague assertion of Native heritage is not a reason

to know a child is an Indian child

. But in this case, Jimmy’s more specific

assertions

— including his statement that he is a descendent of a CIRI shareholder

, a

specific Alaska Native Claims Settlement Act (ANCSA) corporation

— constitute a

reason to know th at Jimmy’s children are Indian children

.

A “reason to know” is information that is more concrete than a “reason to

believe,” 36 but it is inherently less definitive than when a court “knows” a child is an

Indian child. Overall, d etermining what constitutes a “reason to know” involves

analysis of a multitude of facts from the particular record in each case. 37 A “reason to

know” mu st be specific enough to point to the fact that the parent or child is likely

enrolled in a particular tribe and s tate courts generally agree that a “reason to know ” is

“ more than a bare, vague, or equivocal assertion of possible Indian ancestry without

re ference to any identified Indian ancestors with a reasonably suspected tribal

36 In drafting the implementing regulations, the BIA at one point proposed

requiring states to inquire with tribes and courts to treat children as Indian chi ldren if

they had “reason to believe” the child was an Indian child. Indian Child Welfare Act

Proceedings, 81 F ed. Reg. 38,778, 38,803 (June 14, 2016). The language in the final

rule was changed to “reason to know” to ensure that the regulations were con sistent

with the statute and to address commenters’ concerns that the language was overly

broad. Id. at 38,803

- 04

.

37 In re L.H.

, 492 P.3d 1218, 1224 (Mont. 2021).

- 16

- 7653connection.” 38 This is because status as an Indian child is a political designation : it is

based on the parent or child’s enrollment in a t ribe , not their race

. 39

But many tribes consider heritage or descent in determining a child’s

political affiliation with the tribe

. 40 In its thorough analysis of this issue, the

Washington Supreme Court decided that a specific claim of Native ancestry can be a

reason to know a child is an Indian child. 41 First, the court explained that “the ‘reason

to know’ standard covers situations where tribal membership is in question but is a

possibility due to tribal heritage ” and “[ t ] he final determination . . . must then be made

by the tribe itself.” 42 Th at court emphasized that d efining “reason to know” in this way

38 Id. ; In re C.C.G. , 868 S.E.2d 38, 43

- 44 (N.C. 2022) (holding reporting

“Cherokee Indian Heritage” with nothing more not sufficient reason to know); People

in re E.A.M. v. D.R.M. , 516 P.3d 924, 935 (Colo. 2022) (holding that parent’s belief

that they have Native ancestors n ot sufficient reason to know); In re Jeremiah G.

, 92

Cal. Rptr. 3d 203, 208 ( Cal. App. 2009) (holding an assertion that father “may have

Indian in him” not sufficient reason to know).

39 D.R.M. , 516 P.3d at 935; In re C.C.G. , 868 S.E.2d at 44 (“I ndian heri tage,

which is racial, cultural, or hereditary does not indicate Indian tribe membership, which

is political

. ”). Indeed, if ICWA were to apply solely based on racial heritage, it would

likely violate the Due Process Clause of the Fifth Amendment of the U n ited States

C onstitution. See Morton v. Mancari , 417 U.S. 535, 551

- 55 (1974) (holding that “[a]s

long as the special treatment can be tied rationally to the fulfillment of Congress’ s unique obligation toward” tribes, such classifications do not violate du e process); see

also C OHEN ’ S H ANDBOOK OF F EDERAL I NDIAN L AW § 11.06 n.19 ( Nell Jessup Newton

ed., 2019) (listing cases that uphold ICWA on the grounds laid out in Morton in

challenges invoking equal protection).

40 Tommy Miller, Comment, Beyond Blood Quant um: The Legal and

Political Implications of Expanding Tribal Enrollment , 3 A M

. I NDIAN L.J. 323, 323

(2014) (describing range of approaches to tribal citizenship, including lineal descent,

matrilineal descent, and Indian or tribal blood quantum)

.

41 In re Z.J.G. , 471 P.3d 853, 864

- 69 (Wash. 2020).

42 Id. at 866.

- 17

- 7653is integral to respecting tribal sovereignty, because the tribe has the exclusive authority

to determine who is a member or eligible for membership. 43 Second, the court pointed

to federal canons of statutory construction specific to Indian law, noting that “statutes

are to be construed liberally in favor of” t ribes. 44 The court further reasoned that

applying a n expansive definition of “reason to know” se rves the purpose of ICWA to

“guarantee due process to tribes so they have the opportunity to protect their sovereign

interests” and intervene in child custody cases where an Indian child is involved. 45 T he

court ultimately determined that the trial court h ad reason to know that the children in

that matter were Indian children because the mother claimed that she and the children

were eligible to be enrolled in a tribe and because both parents had heritage connecting

them with two other specific tribes. 46

We c onsider the Washington Supreme Court’s reasoning to be persuasive

and note that other states also consider a specific, recent claim of Native heritage to be

a “reason to know” the child is an Indian child. 47 T ribes have many methods to

determine membership or eligibility for membership , including lineal descent or blood

quantum

. 48 Additionally, a tribe may enroll a n eligible child after being notified by a

43 Id. at 865; see also Santa Clara Pueblo v. Martinez , 436 U.S. 49, 72 n.32

(1978) (“ A tribe ’ s right to define its own membership for tribal purposes has long been

recognized as central to its existence as an independent political community. ”).

44 In re Z.J.G

., 471 P.3d at 866-867 (quoting Montana v. Blackfeet Tribe of

Indians , 471 U.S. 759, 766 (1985)).

45 Id. at 867.

46 Id. at 870.

47 In re N.D. , 259 Cal. Rprt. 3d 826, 827- 28 (Cal. App. 2020); In re N.K.

, 851 S.E.2d 321, 335 (N.C. 2020); In re K.S. , 260 A.3d 387, 398 (Vt. 2021).

48 Miller, supra note 40, at 323.

- 18

- 7653state agency that the child is involved in a child custody proceeding. 49 Because the tribe

as sovereign has exclusive power to determine tribal membership or eligibility for tribal

membership, notifying the tribe when a child who may be a member is involved in a

child custody proceeding is imperative to implementing ICWA’s protections of tribes

and tribal members

.

Here, we note that it is unclear what information initially prompted OCS ’s

early inquiry into whether ICWA applied

. The record does not indicate what OCS and

the other parties knew or what Jimmy had told OCS

. OCS appears to have invest igated

affiliation with widely varying tribes early in the case

. Later, Jimmy asserted in court

that his children were either “registered” or eligible to be enrolled. 50 Whatever the

information was

, it appears that the parties and the court treated this i nformation as a

reason to know and took preliminary steps to inquire of and provide notice to the BIA

and two trib al organizations

.

In addition to this earl y information, Jimmy later specified to OCS and the

court that he is a CIRI descendant through his mother

. This statement gave OCS new

information to act on. And p aired with Jimmy’s earlier representations pointing to tribal

affiliation, Jimmy’s new assertion gave OCS and the court additional reason to know

that Jimmy’s children are Indian children

.

49 See In re Z.J.G. , 471 P.3d at 858 (noting children’s grandmother’s tribe

determined that the children were tribally enrolled after bein g contacted about the

custody case); State ex rel. Juv. Dep ’ t of Lane Cnty. v. Tucker , 710 P.2d 793, 797 (Or.

App. 1985) ( upholding Indian child status after Alaska Native village determined child

was eligible for membership after a village council meeting ).

50 We decline to decide here whether those statements, on their own, would

constitute a reason to know. But we note that the court could have found a “reason to

know” with a simple inquiry based on Jimmy’s statements: asking questions about his

ances try, whether his family is from a specific village, or even which tribe he thinks the

children are eligible to be enrolled in.

- 19

- 7653OCS contends that one’s status as an ANCSA shareholder is based solely

on Native heritage and it does not indicate membership in a tribe because ANCSA

corporations are not tribes

. But this is not quite right. To become a shareholder in an

ANCSA corporat ion, a person had to be “one

- fourth degree or more Alaska

Indian [,]

. . . Eskimo, or Aleut blood, or combination thereof.” 51 If there was no proof

of blood quantum, a person “who is regarded as an Alaska Native by the Native

village

. . . [of which] he cla ims to be a member ” and whose father or mother was

regarded as Native by any village could also apply to become an AN CS A shareholder. 52

So

, while ANCSA enrollment may be based on racial identity, it can also be based on

membership in a Native village

, which is relevant to determining whether a child is an

Indian child

.

Additionally, Jimmy’s identification of his status as a CIRI descendant

provided OCS with clearly discern i ble next steps for determining whether he or his

children were members of a tribe within a particular region. The superior court and the

parties were then on notice of Jimmy’s potential affiliation with a tribe within the CIRI

region. Logical next steps would have included asking for further information about

Jimmy’s mother, potentia lly contacting Jimmy’s mother, providing notice (containing

Jimmy’s mother’s identifying information) to tribes within the CIRI region, and

providing this additional information to the BIA. Indeed, t he ANCSA rolls are recent

and well

- documented proof of N ative ancestry created in the 1970s , making Jimmy’s

51 43 U.S.C. § 1602(b). Enrollment was initially limited to those born on or

before December 18, 1971. 43 U.S.C. § 1604(a). Su bsequent ANCSA amendments

allowed corporations to re

- open enrollment if shareholders agreed. 43 U.S.C. §

1606(g)(1)(B). While some Native corporations have re

- opened enrollment, CIRI has

not. CIRI Shareholder Handbook

, C OOK I NLET R EG ’ L C ORP

. 14

- 15 ( Sept

. 12, 2016 )

, https://www.ciri.com/pdfs/forms/2023

- Shareholder

- handbook.pdf

.

52 43 U.S.C. § 1602(b).

- 20

- 7653mother ’s affiliation significantly easier to identify than that of a more distant ancestor

. 53

Although Jimmy’s early statements and the parties’ initial suggestions that ICWA

applied to Jimmy’s family may have been somewhat vague

, Jimmy’s further statement

that he was a CIRI descendant through his mother gave the court and parties a particular

reason to know the children are Indian children and that ICWA may apply.

In holding that ICWA did not apply to Al lie and Jimmy’s children, the

superior court emphasized Jimmy ’s admission during an exchange at the end of a

hearing that he was not an enrolled member of a tribe and that his children were eligible

to be enrolled , but were not yet enrolled

. It is true that ICWA does not apply where

neither the parents nor the children are members of a tribe

. 54 And certainly the

information a parent provides about the ir own or their children’s tribal affiliation is part

of the inquiry into whether children are Indian children.

But Jimmy’s statements in themselves are not determinative

. First, the

record reflects that Jimmy likely did not understand the details of his

family’s

— including his children’s

— tribal affiliation, and did not appreciate the

meaning of the terms that the parties and the court used in relation to ICWA. For

example, Jimmy referenced one of the children being “registered” but later indicated

the children were not already “members” of a tribe. Additionally, the court asked

Jimmy specif ically about a tribe, but in Alaska, recognized tribes are almost always

53 See Original Shareholder Enrollment (1971

- 1991)

, ANSCA R EG ’ L

A SS ’ N

, https://ancsaregional.com/about

- ancsa/#original

- enrollment

.

54 25 U.S.C. § 1903(4). But see In re Z.J.G. , 471 P.3d at 858 (involving tribe

determining children were tribally enrolled after being contacted about custody case);

Tucker , 710 P.2d at 797 (same).

- 21

- 7653named villages or Native communities

. 55 It is unclear whether Jimmy would have

understood this

.

Perhaps more importantly

, treating a parent’s uncertain statements as

determinative i n a context like this c o uld undermine tribal sovereignty, because the tribe

decides who is a member. 56 It is a “basic federal rule” that tribes are the exclusive

authority on their membership

. 57 We have previously held that absent a determination

by a tribe, a child’s membership or eligibility for membership in a tribe is likely not

subject to judicial admission, recognizing the legal authority of tribes to determine

membership. 58 Giving too muc h weight to the statements of a party without proof or

input from the tribe would undermine this fundamental principle.

The superior court also relied on our decision in Bruce L. for the

proposition that if the person asserting ICWA should apply does not c ome forward with

evidence that it does apply, it is not “error to ignore ICWA’s mandates.” 59 But this

reading of Bruce L. is erroneous. I n Bruce L. , the parties had not disputed the child’s

status as an Indian child throughout years of proceedings , but th e superior court found

55 Indian Entities Recognized by and Eligible t o Receive Services f rom the

United States Bureau of Indian Affairs, 88 Fed. Reg. 2112, 2115

- 16 (Jan. 12, 2023).

56 OCS also argues that because tribal membership is voluntary and typically

requires an affirmative act, Jimmy’s assertion that he is not a member and his childre n

are only eligible means that there was no reason to know the children were Indian

children. This argument is unpersuasive for similar reasons: giving too much credit to

a parent’s assertion undermines the tribe’s sovereign ability to determine its own

members and would not align with the purposes of ICWA.

57 Bruce L. v. W.E. , 247 P.3d 966, 975 n.22 (Alaska 2011) (quoting C OHEN ’ S

H ANDBOOK OF F EDERAL I NDIAN L AW § 11.0 2[2], at 827 ( Nell Jessup Newton ed.,

2005) )

.

58 Id. at 975

- 76.

59 Id. at 977.

- 22

- 7653otherwise without informing the parties. 60 We concluded that this decision, without

notice to the parties and an opportunity to respond, was fundamentally unfair. 61 In

reaching that conclusion , we noted that if the status had been disputed, it would have

been the father’s responsibility to put forth evidence that ICWA applied. 62 Here, the

issue is not whether the status of the children was contested, but whether Jimmy put

forth a reason to know that his children are Indian children sufficient to trigger the

State’s duty to conduct a due diligence inquiry into what tribes may have a right to be

involved in the proceeding. We further note that Bruce L. was decided before the BIA

enacted regulations requiring a due diligence inquiry on the part of the party seeking

the involuntary termination. 63 Here, no party raised the BIA regulations before the

superior court , and the court did not discuss them in determining that ICWA did not

apply

.

We reiterate that a “reason to know” that childre n are Indian children may

arise in many different ways, based upon a multitude of different pieces of information,

and determining whether there is a “reason to know” is a fact

- intensive analysis

requiring consideration of the record of information and con text presented in any given

case. 64 H ere, Jimmy’s specifi c claim that he is a recent descendant of a CIRI

shareholder , paired with his early assertions related to his children’s tribal affiliation,

gave OCS and the court “reason to know” his children are I ndian children

, triggering

60 Id. at 9 76 -77.

61 Id. at 977.

62 Id

.

63 The current regulations went into effect in December 2016. Indian C hild

Welfare Act Proceedings, 81 Fed. Reg. 38,788, 38,788 (June 14, 2016) (establishing

December effective date).

64 In re L.H.

, 492 P.3d 1218, 1224 (Mont. 2021).

- 23

- 7653OCS’s duty to in quire and to treat the children as Indian children pending a definitive

answer as to their status

.

3. The court erred in concluding OCS met its due diligence

obligation because the record does not demonstrate OCS

fol lowed through on its duty to inquire, investigate, and notify

tribes and the BIA

.

Where there is a reason to know that ICWA applies, t he court must

confirm , through “a report, declaration, or testimony included in the record

, ” t hat OCS

used due diligence to identify and notify relevant tribes

. 65 We have not previously

addressed what constitutes “due diligence” under the federal regulations. However,

BIA guidance and precedent from other states provide some assistance in defining due

diligence in this cont ext. 66

First, Jimmy argues that the superior court failed to make the

determination of due diligence based up on actual and adequate evidence

. Jimmy

contends the court should have taken sworn testimony from an OCS caseworker

. T he

superior court relied on r eports from OCS workers and OCS’s attorney at various

hearings that they had investigated whether this was an ICWA case. OCS also provided

copies of the letters to t he tribes and to the BIA and certified return mail receipts in the

record, as required by the regulations. 67

We disagree with Jimmy’s contention that the court could only confirm

the exercise of due diligence through sworn testimony. The BIA regulation s only

require that the court confirm the agency’s due diligence through “a report, declarati on,

65 25 C.F.R. § 23.107(b)(1).

66 Bruce L. , 247 P.3d at 975 n.22 (noting deference this court typically grants

to BIA guidance as persuasive).

67 25 C.F.R. § 23.111(a)(2).

- 24

- 7653or testimony included in the record.” 68 BIA Guidelines indicate only that the agency’s

efforts be “documented in the court record.” 69 There is nothing that indicates that sworn

testimony from an OCS caseworker would be necessary. The oral reports that the

state’s attorney gave the court throughout the pendency of the litigation appear to be

the type of reports or declarations the regulations anticipate.

But the superior court must have sufficient information before it can

confirm whether OCS used due diligence. 70 Here, we agree with Jimmy that OCS failed

to provide sufficient information to confirm that it acted with due diligence in

investigating whether Allie and Jimmy’s children were Indian children

. First, there is

nothing in the record to sugges t that OCS conducted any inquiry after Jimmy identified

that his mother w as a CIRI shareholder and second, the information that OCS provided

regarding its initial inquiries is insufficient to establish whether th e agency used due

diligence.

There is no evi dence in the record that OCS conducted any investigation,

much less used due diligence, after Jimmy informed the court that his mother was a

CIRI shareholder. At the beginning of the case, OCS told the court that there was reason

to believe that Jimmy was affiliated with Nome. The record does not indicate why OCS

thought Nome was the tribe and Jimmy did not contest this. In any event, OCS notified

Nome, the BIA and, for reasons not reflected in the record, the Tanana Chiefs

Conference. Notably, Nome and Tanana Chiefs Conference tribes do not overlap the

same geographic area as CIRI. 71 When Jimmy claimed to be a descendant of a CIRI

68 25 C.F.R. § 23.107(b)(1).

69 BIA G UIDELINES

, supra note 27, at 21.

70 25 C.F.R. § 23.107(b)(1) (specifying that state court must confirm agency

used due diligence based on information in the record).

71 There are 12 regional Alaska Native for-profit corporations, each with an

affiliated non-profit corporation. Compare The Twelve Regions , ANSCA R EG ’ L A SS ’ N

,

- 25

- 7653shareholder, he was claiming heritage in a region other than the ones OCS had

researched. T here is no indication in the record that OCS followed up on those claims

,

despite the fairly straightforward and concrete steps OCS could have taken

. 72

Moreover

, the record in this case does not confirm that OCS acted

diligently, even based upon initial information available to the parties, prior to Jimmy’s

further disclosure about his mother

. The record on this issue consists of copies of a

letter sent to two trib al organizations and the BIA, certified return mail receipts

indicating the letter was received by those entities

, and vague dis cussion of follow

- up

during some of the court hearings. The record indicates that OCS heard back from the

Nome Eskimo Community , but does not indicate whether OCS received any response

from any other entity. After the Nome Eskimo Community reported that the children

were not members, OCS investigated “another potential tribe.” Then, during the

contested probable cause hearing, OCS ’s attorney noted that after “checks were run

again

, ” it found the children were not Indian children

. OCS indicated it reached this

conclusion based up on information from the tribes and also from review of records.

https://ancsaregional.com/the

- twelve

- regions

. CIRI covers the Cook Inlet Region. Id.

The Tanana Chiefs Conference is the non

- profit corporation for the i nterior r egion and

it incorporated as Doyon, Limited following ANSCA. Our History

, T ANANA C HIEFS

C ONF

. , https://www.tananachiefs.org/about /

. Nome, on the other hand, is within the

Bering Straits Native Corporation Region. History and Region

, B ERING S TRAITS

N ATIVE C ORP

. , https://beringstrait s.com/history

- region / . None of these three regions

overlap.

72 We also note that OCS’s original notice letters do not have any

information about Jimmy’s parents. Technically, the regulations require information

about extended relatives to be in the noti ce to tribes and BIA only if known

. 25 C.F.R.

§ 23.111(d)

- (e). But gathering more information about the child’s direct lineal

ancestors from the parent that is claiming they are Indian children would be quite

helpful to the tribes and BIA. There is no i ndication in the record that OCS ever asked

Jimmy for information about his parents.

- 26

- 7653But it is not clear which other tribe OCS contacted

, what was in the prior record s , or

whether OCS ever received any response from the BIA

. The r ecord in this case provides

little to no information about what OCS did after sending out its initial letter of notice

and inquiry.

Understanding the steps that OCS has taken in investigating children’s

tribal affiliation and providing notice to potentiall y affiliated tribes is necessary to

confirm whether the agency acted with due diligence

. And preliminary steps, without

any clear follow

- up, will often be insufficient. BIA commentary suggests that state

agencies should make multiple repeated requests an d seek the BIA ’s help in contacting

a tribe before a court can make a determination based only on the information it has

available

. 73 In cases from other states, child welfare agencies have submit ted the

responses they receive from tribes and the BIA in th e record, so the trial court s can

ensure that t he agencies have exercised due diligence. 74 Knowing which tribes were

contacted , what their response s were , and whether the BIA responded or had any further

information are all critical pieces of information in evaluating whether OCS acted with

due diligence. Here, where much of this information is missing, the record is simply

insufficient to establish diligence on OCS’s part.

Because Jimmy provided a reason to know t hat his children are Indian

children, and OCS f ailed to exercise due diligence in inquiring into the children’s tribal

73 BIA G UIDELINES

, supra note 27,at 22.

74 See, e.g.

, In re D.J. , 862 S.E.2d 766, 771-72 (N.C. 2021) (upholding trial

court’s determination that child was not Indian child after state agency submitted letters

to and responses from many tribes indicating that child was not member and

confirmation from BIA that agency ha d conducted due diligence into trial court’s

records); In re N.K. , 851 S.E.2d 321, 335 (N.C. 2020) (holding that trial court failed to

ensure due diligence occurred because there was only one response from all potential

tribes in the record and no indication that the agency contacted BIA in the record).

- 27

- 7653affiliation and notifying potentially affiliated tribes , we vacate the superior court’s order

terminating Jimmy ’s and Allie’s parental ri ghts to Tamera and Ulysses and remand for

further proceedings consistent with this opinion. 75

B. The Superior Court Did Not Err When It Terminated Allie’s Parental

Rights To Martha And George

.

Having addressed the parents ’ ICWA

- related arguments as to Tamera a nd

Ulysses, we now proceed with addressing Allie’s additional non

- ICWA arguments

about the superior court’s other findings in the termination order

. Allie argue s that the

court clearly erred in finding that she had not remed ied the behavior causing her

ch ildren to be in need of aid and erred in determining that OCS provided reasonable

efforts

. 76 Allie also challenges the court’s finding that termination was in Martha’s best

interests. W e see no err or in these aspects of the superior court’s termination order, and

thus affirm the order terminating Allie’s parental rights with respect to Martha and

George.

1. The s uperior c ourt did not clearly err when it found that

Martha and George were in need of aid due to All ie’s substance

abuse and that Allie failed to remedy her substance abuse

.

I t is not wholly clear whether Allie is challenging the superior court’s

finding that the children were in need of aid due to substance abuse or its finding that

she failed to remedy her substance abuse

. She argues tha t the children did not “remain”

in need of aid at the time of trial, contending that OCS p rovided no evidence that Allie

75 Because we vacate and remand the termination of parental rights on other

grounds, we need not reach Jimmy’s claim that the case should be remanded because

he did not receive effective assistance of counsel related to the application of ICWA to

his family.

76 Jimmy made similar arguments about these aspects of the termination

order with respect to him. Because we are vacating the order terminating parental rights

as to Tamera and Ulysses on ICWA-related g rounds, we do not address Jimmy’s

additional arguments.

- 28

- 7653continued to abuse substances after February 2021, the most recent time period reflected

in the me thadone clinic’s UA results

. W e reject Allie’s argument and affirm the

superior court’s CINA and failure to remedy findings

.

First, the superior court’s finding that the children were in need of aid

due to parent al substance abuse is well supported by evidence in the record. 77

A laska Statute 47.10.011(10) provides that a child is in need of aid when the parent’s

“ ability to parent has been substantially impaired by the addictive or habitual use of an

intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial

risk of harm to the child .” Ulysses came into OCS care as a result of testing positive

for drugs, and both parents tested positive for those drugs at the same time. Law

enforcement found Allie with controlled sub stances with Martha in her custody. Allie

missed every UA scheduled by OCS , which can be considered failed tests

. 78 Finally,

Allie tested positive for controlled substances through February 2021 and refused to

test in March 2021

. This evidence provides u nequivocal support for the superior court’s

finding that the children were in need of aid due to Allie’s substance abuse. 79

Next

, we note that w hen determining whether a parent has remedied the

behavior that placed the children in need of aid, the superior court may examine the

77 Because we affirm the superior court’s finding s that the children were in

need of aid due to substance abuse and that Allie failed to remedy that conduct, we do

not reach Allie’s challenge to the superior court’s abandonment finding. We need only

affirm one CINA finding to affirm the termination order. Annette H. v. State, Dep’t of

Health & Soc. Servs., Off. of Child.’s Servs. , 450 P.3d 259, 266 (Alaska 2019).

78 Casey K. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs

. , 311 P.3d 637, 644 (Alaska 2013).

79 See id. at 643-44 (holding missed urinalyses and drug-related criminal

charges sufficient to support finding children in need of aid under AS 47.10.011(10));

Barbara P. v. State, Dep’t of Health & Soc. Servs

., Off. of Child.’s Servs. , 234 P.3d

1245, 1258-59 (Alaska 2010) (noting that drug use during pregnancy and failure to

comply with treatment sufficient to support finding und er AS 47.10.011(10)).

- 29

- 7653history of conduct by the parents and the likelihood th at harmful conduct will

continue. 80 “ T he superior court is entitled to rely on a parent’s documented history of

conduct as a predictor of future behavior.” 81 For example, we have affirmed findings

th at a parent failed to remedy substance abuse even after achieving short

- term sobriety

,

if the parent fail ed to clearly admit substance abuse or take steps beyond abstinence to

ensure sustained sobriety. 82

Here, we acknowledge the evide nce that Allie participated in methadone

treatment. In spite of that treatment, though, Allie continued to abuse multiple

substances, including amphetamine, opioids, and occasionally fentanyl

. She provided

no negative drug tests during the time period re flected in the methadone clinic’s

treatment records, and she refused to participate in OCS

- approved counseling and

testing. She also repeatedly told caseworkers she had done nothing wrong and therefore

did not have to comply with OCS ’s directives

. T here is no evidence that Allie achieved

sobriety , let alone sustained sobriety, or that she would be able to achieve sobriety

within a reasonable time frame. 83

In light of the overwhelming evidence that Allie’s substance abuse

continued through March 2021 and that Allie failed to meaningfully engage in treatment

80 AS 47.10.088(b)(4)

- (5); Lucy J. v. State, Dep’t of Health & Soc. Servs

., Off. of Child.’s Servs. , 244 P.3d 1099, 1113 (Alaska 2010).

81 Casey K. , 311 P.3d at 644 (quoting Sherry R. v. State, Dep’t of Health &

Soc. Servs., Div. of Fam. & Youth Servs. , 74 P.3d 896, 903 (Alaska 2003) )

.

82 See Sherry R. , 74 P.3d at 902

- 03 (noting that while parent had been sober

for one year, superior court was justified in finding that parent had not internalized

depth of problem); Barbara P. , 234 P.3d at 1261 (noting extended period of sobriety

would be necessary to prove parent with significant history of substance abuse can

maintain sobriety ).

83 AS 47.10.088(b)(1) (superior court may consider “ the likelihood of

returning the child to the parent within a reasonable time ”).

- 30

- 7653recommended by OCS or to recogn ize the impact of her drug use on her children

, the

court reasonably conclude d that she had failed to remedy her substance abuse

.

2. The superior court did not err whe n it determined that OCS

made reasonable efforts toward Allie.

Allie also contests the superior court ’s determination that OCS made

reasonable efforts to reunite the family

. In concluding OCS made reasonable efforts,

t he superior court focused primarily o n the OCS caseworker’s testimony about the

services provided and deemed those efforts reasonable under the circumstances.

Included among the relevant circumstances was what the superior court characterized

as the parents ’ “absolute lack of involvement” an d hostility towards OCS.

OCS has a statutory duty to provide “timely, reasonable efforts . . . to

enable the safe return of [children] to the family home.” 84 OCS must identify the family

support services that will assist the parent and refer parents to those services. 85 In

making reasonable efforts, the primary consideration is the child’s best interests. 86 “The

efforts that OCS makes must be reasonable but n eed not be perfect.” 87 What efforts to

pursue and what timing is reasonable is within OCS’s discretion. 88 But OCS must

provide “uncompromising” efforts to every parent, even if the chances of success are

84 AS 47.10.086(a).

85 AS 47.10.086(a)(1)-(2).

86 AS 47.10.086(f).

87 Casey K. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs.

, 311 P.3d 637, 645 (Alaska 2013) (quoting Audrey H. v. State, Dep’t of Health & Soc.

Servs., Off. of Child.’s Servs. , 188 P.3d 668, 678 (Alaska 2008)).

88 Id. (quoting Sean B. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s

Servs. , 251 P.3d 330, 338 (Alaska 2011)).

- 31

- 7653low. 89 Additionally, a superior court may consider p arents ’ level of cooperation with

OCS in evaluating whether OCS made reasonable efforts. 90

Allie argues that OCS failed to meaningfully case plan with her and thus

the agency’s efforts toward her family could not have been reasonable

. But Allie’s

argument is contradicted by evidence that OCS continuously attempted to case plan

with her in spite of her ongoing resistance to working with OCS. The OCS caseworker

testified that she discussed Allie’s case plan with her in detail during the initial case

conference. She further testified that Allie was resistant to case planning throughout

the life of the case, would not discuss case planning over the phone, and failed to attend

any of the case planning meetings that the caseworker scheduled with her. T he

caseworker therefore had to create a case plan without Allie’s input. T he superior court

did not clearly err in crediting this testimony

.

The superior court also noted that OCS offered Allie a myriad of services,

including referrals for ur inalysi s , parenting classes, and substance abuse assessments

,

and ensur ed ongoing family contact

. Indeed, OCS continued to attempt to work with

Allie through the termination trial. OCS also points to additional efforts it made to

support the family , incl uding supervision of visits, conducting a relative placement

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

. , 407

P.3d 442, 448 (Alaska 2017).

90 Sherman B. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs.

, 310 P.3d 943, 953

- 54 (Alaska 2013). Allie argue s that the standard we described in

Mona J. v. State, Department of Health and Social Services, Off ice of Children’s

Services , 511 P.3d 553 (Alaska 2022), for determining how to consider the impact of a parent’s behavior on evaluating whether OCS’s efforts were active should apply here.

We have previously declined to apply Mona J. to reasonable efforts. Slade R. v. Dep’t

of Health & Soc. Servs., Off. of Child.’s Servs. , No. S

- 18252, 2022 WL 3906701, at *6

n.34 (Alaska Aug. 31, 2022) (unpublished opinion). Regardless, the issues discussed

in Mona J. are not reflected in this case. Here, OCS continued to try to work with Allie

despit e her lack of cooperation, and the court considered that lack of cooperation among

the many other services that OCS provided to the family.

- 32

- 7653search, attempt ing to place the children together, getting the children enrolled with

Medicaid

, and ensuring the children’s medical and therapeutic needs were met

.

Given the evidence presented r egarding OCS’s work with the family

,

including continuous efforts to work and communicate with Allie , the superior court

did not err in determining that OCS’s efforts toward the family were reasonable

.

3. The superior court did not clearly err when it found that

termination was in the children’ s best interest s

.

Allie contends that the superior court clearly erred in finding that

termination of her parental rights would serve her children’s

— especially

Martha’s

— best interests. In p articu lar Allie argues the findings related to Martha’s

best interests were contradictory because the court found both that Martha was spending

too much time with Allie and that Allie had abandoned her.

To terminate a parent’s rights, the superior court must de termine by a

preponderance of the evidence that termination is in “the best interests of the child.” 91

This is a “capacious” analysis that “ require [ s ] a comprehensive judgment as to whether

the child’s best interests favor the termination of parental right s. ” 92 The superior court

“is permitted to ‘consider any fact relating to the best interest of the child, including’

the statutory factors, when evaluating whether a parent has remedied his or her

conduct.” 93 Here

, the superior court’s best interest s determination emphasized the great

unlikelihood that Allie would be able to remedy her substance abuse with in a reasonable

time frame and the resulting likelihood that the harm to the children would continue

unabated

. These concerns, and the court’s rela ted findings, are well supported by the

record.

91 AS 47.10.088(c); CINA Rule 18(c)(3).

92 Karrie B. ex rel. Reep v. Catherine J. , 181 P.3d 177, 186 (Alaska 2008).

93 Barbara P. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs.

, 234 P.3d 1245, 1263 (Alaska 2010) (quoting AS 47.10.088(b) ).

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- 7653Further, the superior court did not find that Allie and Martha were

spending too much time together; rather the court was concerned that Allie was

exposing Martha to “substance abuse, domestic violence, and criminal activity.” The

court recognized the uncertainty of achieving permanency for Martha given her

runaway status, but found that those concerns were outweighed by the harm that Allie

would continue to cause Martha if her parental rights remained intact. The court noted

that termination offered “at least the hope that [Martha] could be placed in a

guardianship” she would find acceptable. The court did not clearly err in weighing

those concerns or in finding that terminating Allie’s rights was in Martha’s and

George’s best interests.

CONCLUSION

We AFFIRM the termination of Allie’s parental rights to Martha and

George. We VACATE the termination of Jimmy ’s and Allie’s parental rights to

Tamera and Ulysses and REMAND for further proceedings consistent with this

opinion.

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- 7653