Active Efforts under ICWA in the Context of Parental Incarceration and Noncooperation

Introduction

This commentary examines the Alaska Supreme Court’s memorandum opinion in Gerald T. v. State of Alaska, Department of Family & Community Services, Office of Children’s Services (No. S-19127, May 21, 2025). The appeal arose after the Superior Court in Dillingham terminated a father’s parental rights to his youngest child, Adrian, who is an enrolled member of his parents’ tribe. The father argued that the Office of Children’s Services (OCS) failed to satisfy the “active efforts” requirement of the Indian Child Welfare Act (ICWA) before seeking termination. The Supreme Court affirmed, finding that OCS’s attempts—though imperfect and complicated by the father’s incarceration and refusal to cooperate—met the statutory standard when viewed in the context of the entire family unit and the limited services available in prison.

Summary of the Judgment

The Supreme Court’s decision resolves three key questions:

May a court consider reunification efforts with all family members (other parent, extended relatives) when assessing whether “active efforts” were made under ICWA? Yes.
Can a parent’s noncooperation be factored into the evaluation of an agency’s active efforts? Yes, but the agency must still make genuine attempts to overcome that noncooperation.
Did OCS’s cumulative efforts—case plans, video and letter contact, referral to prison programs, outreach to relatives, and reunification services to the mother—satisfy the “active efforts” test? The Court held they did, by clear and convincing evidence.

Accordingly, the Supreme Court affirmed the Superior Court’s termination of Gerald’s parental rights.

Analysis

Precedents Cited

25 U.S.C. § 1912(d) (ICWA active efforts requirement): “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family...”
Jon S. v. State, 212 P.3d 756 (Alaska 2009): Distinguishes “active” from “passive” efforts—active means guiding a parent through services, not merely drafting a plan.
A.M. v. State, 945 P.2d 296 (Alaska 1997) and A.A. v. State, 982 P.2d 256 (Alaska 1999): No “pat formula” for active efforts; totality of the circumstances governs.
Dashiell R. v. State, 222 P.3d 841 (Alaska 2009): Recognizes that a parent’s incarceration and the resulting service limitations must inform what efforts are possible.
Anton K. v. State, 554 P.3d 456 (Alaska 2024): Holds that OCS may consider pre-incarceration reunification work and efforts with extended family, even where visitation was paused for years.
Mona J. v. State, 511 P.3d 553 (Alaska 2022): Emphasizes that a parent’s refusal to participate does not excuse the agency from making active efforts; the agency must try to overcome noncooperation.

Legal Reasoning

The Court applied a two-step analysis. First, it reviewed OCS’s factual findings—facilitation of visits, development of multiple case plans, outreach to prison services, and placement efforts—for clear error. Finding none, it then independently determined whether those facts satisfied ICWA’s active‐efforts requirement.

Key elements of the reasoning include:

Holistic view of “family”: ICWA requires “active efforts to prevent the breakup of the Indian family.” Where one parent is incarcerated, efforts with the other parent and extended relatives are integral to maintaining the family unit.
Parent’s noncooperation: While an uncooperative parent cannot be held solely responsible for OCS’s outreach failures, a parent’s hostility, refusal to communicate, and blaming caseworkers may limit what services are practically deliverable. OCS must nonetheless attempt to surmount these barriers.
Incarceration constraints: The father’s unavailability for prison programs until sentencing, combined with limited class slots, legitimately narrowed OCS’s options. OCS documented referral attempts and prison responses.
Active vs. passive efforts: OCS went beyond “drawing up a case plan and leaving the client to satisfy it.” It scheduled Zoom calls (even after disruptions), switched to letter writing when calls were paused, mailed regular updates, developed case plans jointly when possible, and conducted a relative home search in coordination with the tribe.

Impact

This decision clarifies and reinforces the following principles in Alaska’s ICWA jurisprudence:

Courts may credit agency efforts with the non‐incarcerated parent and extended family when evaluating “active efforts.”
An uncooperative or hostile parent does not absolve child‐welfare authorities of outreach obligations, but such behavior factors into what can realistically be accomplished.
Documenting attempts to engage incarcerated parents and checking with prison authorities about program availability are critical to show due diligence.
Even where direct parent‐child contact falters, alternative communication methods (letters, information by mail) are part of active efforts.

Complex Concepts Simplified

“Active Efforts” under ICWA: A higher standard than “reasonable efforts” under state law. It demands tangible, persistent assistance—helping a parent access services, addressing barriers, and tailoring plans to cultural needs.
“Clear and Convincing Evidence”: A standard requiring that the truth of the facts be highly probable, yet below “beyond a reasonable doubt.” OCS must satisfy this before terminating parental rights under ICWA.
Mixed Question of Law and Fact: OCS’s actual outreach is a factual matter (reviewed for clear error). Whether those facts meet ICWA’s definition of “active efforts” is a legal question (reviewed de novo).
“Child in Need of Aid”: Under Alaska law (AS 46.10.011), a child may be found CINA for neglect, parental incarceration, substance abuse, domestic violence, or abandonment.

Conclusion

Gerald T. v. State of Alaska underscores that compliance with ICWA’s active‐efforts requirement must be judged in context. Agencies must demonstrate genuine, culturally informed outreach—particularly when parents are incarcerated or reluctant to participate—but courts will view those efforts as part of a holistic family‐preservation strategy. This decision will guide future ICWA cases by affirming that active efforts include work with nonincarcerated parents, extended family placements, and creative communication methods when direct contact is disrupted. Ultimately, it balances the Act’s protective aims with the practical realities of incarceration and parental noncooperation, ensuring that the “Indian family” remains central to any child‐welfare intervention.