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, 

OFFICE OF CHILDREN’S 

SERVICES, 

 Appellee. 

 

ALLIE P., 

 Appellant, 

v. 

STATE OF ALASKA, DEPARTMENT 

OF HEALTH & SOCIAL SERVICES, 

OFFICE OF CHILDREN’S 

SERVICES, 

 Appellee. 

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) 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 

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

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

rights with respect to her two older children. 

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FACTS 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. That 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 

urinalyses 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. 

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At that 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 exposed the children to domestic violence in her home and allowed 

unsupervised contact between the children and Allie and Jimmy. OCS filed an 

emergency petition for custody of those 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. The parents did not attend OCS scheduled drug testing 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, the clinic eventually provided 

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

that the parents consistently received their methadone doses during that time. But the 

records also demonstrated that the parents abused substances during that period. 

Urinalysis results showed 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 

tested positive for amphetamine and opioids and refused to test several times in 2020 

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

missed counseling 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. Throughout most of the CINA proceedings, 

OCS reported that Martha was in “runaway” status. 

In November 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 drug possession, theft, and trespass. 

OCS caseworkers and law enforcement officers also later testified about 

several incidents in 2021, when they found Martha with her parents or otherwise 

evading OCS. In June 2021, for example, Martha ran away from her foster 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 interaction, 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 

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visited 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 into 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 

bottles and found marijuana and associated paraphernalia 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 possible 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 Affairs (BIA), Tanana Chiefs Conference, and Nome 

Eskimo Community, notifying them that Ulysses may be an Indian child. 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 inquiries were only focused on Jimmy’s children, Tamera and 

Ulysses. 

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parents’ 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 establish 

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 

contacting 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. 

There, 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 willing to engage in their 

case 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-eighth Native” and the children “fit the criteria” for 

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enrollment 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 court 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 the court directed OCS to read the specifics of each case plan aloud during the 

hearing. Allie objected 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 the court explained to Allie the importance of using the recommended 

providers, participating 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 law 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 

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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 create 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 did 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 by 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 counsel 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 that 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 of federally recognized tribes. See U.S. DEP’T OF THE INTERIOR, BUREAU OF 

INDIAN AFFS., 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%20Form_Expires%2011.30.2024_508.pdf. 

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care 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 member of a tribe. 

The superior court determined that this information did not show that the 

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

Jimmy was an enrolled member of a tribe or that the children were 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 the 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 unknown 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. To the extent there was any duty to 

investigate or provide notice 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, the court emphasized 

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

found that neither of the parents 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.”). 

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plans, 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 interests 

to terminate Jimmy’s and Allie’s parental rights. 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 

 Whether 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 their 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. 

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favorable 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. 

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an Indian tribe.”13 In any involuntary child custody proceeding, if 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 contemplate that 

information relating to a child’s tribal 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 “reason 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 sufficient 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). 

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and 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 tribe 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 notice it sends to tribes and the BIA. The notice must include, in plain 

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

known, the names, birthdates, birthplaces, and Tribal enrollment of other direct lineal 

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

the rights of the tribe 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 tribes 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. DEP’T OF THE INTERIOR, BUREAU OF INDIAN AFFS., GUIDELINES FOR 

IMPLEMENTING THE INDIAN CHILD WELFARE ACT 21 (2016), https://www.bia.gov/sites 

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

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whether 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 parents and any 

extended family.29 

The 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 whether 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 tribe 

does not respond, the BIA recommends that the court only make a decision after an 

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 GUIDELINES, supra note 27, at 21. 

29 Id. 

30 25 C.F.R. § 23.108(a). 

31 BIA GUIDELINES, 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). 

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

children are Indian children. 

We have not yet considered what 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 that 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, determining 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” must be specific enough to point to the fact that the parent or child is likely 

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

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

reference 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 children if 

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

Proceedings, 81 Fed. 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 consistent 

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). 

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connection.”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 tribe, 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 That court emphasized that defining “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 not 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 (“Indian heritage, 

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 United States 

Constitution. 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 due process); see 

also COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 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 Quantum: The Legal and 

Political Implications of Expanding Tribal Enrollment, 3 AM. INDIAN 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. 

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is 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” tribes.44 The court further reasoned that 

applying an expansive definition of “reason to know” serves 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 The 

court ultimately determined that the trial court had 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 consider 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 Tribes have many methods to 

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

quantum. 

48 Additionally, a tribe may enroll an 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. 

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state 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 investigated 

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 information as a 

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

and two tribal organizations. 

In addition to this early 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 paired 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 being 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 

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

children are eligible to be enrolled in. 

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OCS 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 corporation, 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 claims to be a member” and whose father or mother was 

regarded as Native by any village could also apply to become an ANCSA 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 discernible 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, potentially 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, the ANCSA rolls are recent 

and well-documented proof of Native 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). Subsequent 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, COOK INLET REG’L CORP. 14-15 (Sept. 12, 2016), 

https://www.ciri.com/pdfs/forms/2023-Shareholder-handbook.pdf. 

52 43 U.S.C. § 1602(b). 

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mother’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 Allie 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 their 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 specifically about a tribe, but in Alaska, recognized tribes are almost always 

53 See Original Shareholder Enrollment (1971-1991), ANSCA REG’L 

ASS’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). 

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named 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 in a context like this could 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 much 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 come 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. In Bruce L., the parties had not disputed the child’s 

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

55 Indian Entities Recognized by and Eligible to Receive Services from 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 children 

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 COHEN’S 

HANDBOOK OF FEDERAL INDIAN LAW § 11.02[2], at 827 (Nell Jessup Newton ed., 

2005)). 

58 Id. at 975-76. 

59 Id. at 977. 

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otherwise 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 children 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 context presented in any given 

case.64 Here, Jimmy’s specific 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 Indian children, triggering 

60 Id. at 976-77. 

61 Id. at 977. 

62 Id. 

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

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). 

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OCS’s duty to inquire 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 

followed through on its duty to inquire, investigate, and notify 

tribes and the BIA. 

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

confirm, through “a report, declaration, or testimony included in the record,” that 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 context.66 

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

determination of due diligence based upon actual and adequate evidence. Jimmy 

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

superior court relied on reports 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 the 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 regulations only 

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

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). 

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or 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 suggest that OCS conducted any inquiry after Jimmy identified 

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

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

diligence. 

There is no evidence 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 GUIDELINES, 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 REG’L ASS’N, 

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

researched. There 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 tribal organizations and the BIA, certified return mail receipts 

indicating the letter was received by those entities, and vague discussion 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 upon 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 interior region and 

it incorporated as Doyon, Limited following ANSCA. Our History, TANANA CHIEFS 

CONF., https://www.tananachiefs.org/about/. Nome, on the other hand, is within the 

Bering Straits Native Corporation Region. History and Region, BERING STRAITS 

NATIVE CORP., https://beringstraits.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 notice 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 indication in the record that OCS ever asked 

Jimmy for information about his parents. 

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But it is not clear which other tribe OCS contacted, what was in the prior records, or 

whether OCS ever received any response from the BIA. The record 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 potentially 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 and 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 submitted the 

responses they receive from tribes and the BIA in the record, so the trial courts can 

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

contacted, what their responses 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 that his children are Indian 

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

73 BIA GUIDELINES, 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 had 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). 

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

terminating Jimmy’s and Allie’s parental rights 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 and 

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

about the superior court’s other findings in the termination order. Allie argues that the 

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

children 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. We see no error 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 superior court did not clearly err when it found that 

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

abuse and that Allie failed to remedy her substance abuse. 

It 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 that the children did not “remain” 

in need of aid at the time of trial, contending that OCS provided 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 grounds, we do not address Jimmy’s 

additional arguments. 

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

in the methadone clinic’s UA results. We 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 parental substance abuse is well supported by evidence in the record.77 

Alaska 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 substances 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 unequivocal 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 when 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 findings 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 under AS 47.10.011(10)). 

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history of conduct by the parents and the likelihood that harmful conduct will 

continue.80 “The 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 

that a parent failed to remedy substance abuse even after achieving short-term sobriety, 

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

ensure sustained sobriety.82 

Here, we acknowledge the evidence 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 reflected 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. There 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”). 

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recommended by OCS or to recognize the impact of her drug use on her children, the 

court reasonably concluded that she had failed to remedy her substance abuse. 

2.	 The superior court did not err when 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, 

the superior court focused primarily on 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” and 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 need 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)). 

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low.89 Additionally, a superior court may consider parents’ 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. The 

caseworker therefore had to create a case plan without Allie’s input. The 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 urinalysis, parenting classes, and substance abuse assessments, 

and ensured 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, including 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 argues that the standard we described in 

Mona J. v. State, Department of Health and Social Services, Office 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 

despite her lack of cooperation, and the court considered that lack of cooperation among 

the many other services that OCS provided to the family. 

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search, attempting 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 regarding 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 interests. 

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 particular 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 determine 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 rights.”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 interests determination emphasized the great 

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

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

unabated. These concerns, and the court’s related 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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Further, 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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