ICWA “Active Efforts” Are Satisfied by Thorough, Multi-Channel Location and Engagement Attempts When Parents Disappear; ICWA Harm Finding Requires Proof of Likely (Not Certain) Serious Damage

I. Introduction

In Ruby C. v. State of Alaska, DFCS, OCS and Jaspar O. v. State of Alaska, DFCS, OCS (consolidated), the Alaska Supreme Court affirmed termination of parental rights to two Indian children, Denver and Celia. Ruby C. (mother) is a member of the Central Council of the Tlingit & Haida Indian Tribes of Alaska, rendering the children “Indian children” under the Indian Child Welfare Act of 1978 (ICWA). The Office of Children’s Services (OCS) removed Denver after an eviction revealed extreme home conditions and subsequent drug exposure evidence; Celia was removed at birth after testing positive for multiple substances and withdrawal concerns.

On appeal, both parents primarily challenged whether OCS satisfied ICWA’s “active efforts” requirement to prevent breakup of the Indian family, emphasizing their homelessness and extended periods out of contact. Ruby additionally contested (1) the ICWA requirement that continued custody would likely result in serious emotional or physical damage, and (2) the best-interests finding supporting termination.

II. Summary of the Opinion

The court affirmed in full. It held:

  • OCS made active efforts under ICWA, viewed as a whole, including robust efforts to locate and re-engage parents who had disappeared and were unresponsive.
  • The superior court did not err in finding, beyond a reasonable doubt, that continued custody by Ruby would likely result in serious emotional or physical damage to the children.
  • The superior court did not clearly err in finding termination was in the children’s best interests, particularly given the children’s lengthy time in care and Ruby’s very recent engagement with treatment.

III. Analysis

A. Precedents Cited

1. Standards of review and framing

  • Doe v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. — identified “active efforts” as a mixed question of law and fact.
  • State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. v. Cissy A. (quoting J.A. v. State, Div. of Fam. & Youth Servs.) — treated ICWA harm determinations as mixed questions and confirmed de novo review of ICWA interpretation.
  • In re April S., Kyle S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., Oliver N. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. — supported de novo review of ICWA and BIA regulation interpretation.
  • Langdon v. Champion (quoting Brooks v. Brooks) — stated the court adopts the most persuasive rule of law in light of precedent, reason, and policy.
  • Demetria H. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (quoting Pravat P. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.) and Chloe W. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (quoting Sherman B. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.) — supplied clear-error review principles.
  • Hannah B. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (citing Christina J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.) — confirmed best-interests findings are reviewed for clear error.

2. ICWA “active efforts”: the governing Alaska framework

  • Mona J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (citing Walker E. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.; Christopher C. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.) — emphasized that active efforts are assessed in the totality and do not demand perfection; “minor failures” do not defeat an active-efforts finding.
  • A.A. v. State, Dep't of Fam. & Youth Servs. (quoting A.M. v. State) — reiterated there is “[n]o pat formula” distinguishing active from passive efforts.
  • Bill S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (quoting Philip J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.) — stated active efforts generally mean OCS “takes the client through the steps” rather than leaving the parent to perform the plan alone.
  • Clark J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (quoting Bill S. and Maisy W. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.) — confirmed a parent’s unwillingness may be considered, but it does not excuse OCS from making and demonstrating efforts; also warned that different parent behaviors require OCS adjustments.
  • Sylvia L. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (quoting E.A. v. State, Div. of Fam. & Youth Servs.) — recognized that failed attempts to contact a parent can still qualify as active efforts where the parent’s conduct makes services practically impossible.
  • People ex rel. J.S.B., Jr. and In re William G. — out-of-state support for the proposition that the State cannot be required to deliver services to a parent who voluntarily absents themself and cannot be located; multiple attempts at notice/engagement may suffice.
  • Casey K. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. — endorsed evaluating active efforts across the full history, not a narrow slice of time.

3. ICWA serious-damage finding: likelihood and changeability

  • Diana P. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. — supplied the two-prong test: (1) parental conduct likely to harm, and (2) conduct unlikely to change.
  • Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of Fam. & Youth Servs. — allowed reliance on documented past conduct as predictive of future behavior.
  • Sylvia L. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (citing L.G. v. State, Dep't of Health & Soc. Servs.) — confirmed courts may aggregate lay and expert evidence for the ICWA serious-damage determination.
  • Sandy B. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. — supported affirmance of serious-damage findings even where a parent has some recent progress, given long histories and relapse risk; also noted (in a different context) that whether older-child efforts count for younger children is “heavily fact dependent.”
  • A.H. v. State, Dep't of Health & Soc. Servs. — recognized that children’s ages/circumstances matter in harm analysis.

4. Best interests and permanency

  • Thea G. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., abrogated on other grounds by State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. v. Cissy A. — listed non-exclusive best-interests considerations (time to reunification, parental remediation efforts, harm, likelihood of continuing harm, parental history).
  • Christina J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. — supported prioritizing timely permanency where children have spent long periods in custody.
  • A.A. v. State, Dep't of Fam. & Youth Servs. — reiterated the child’s best interests are paramount.

B. Legal Reasoning

1. Active efforts when parents are missing or unresponsive

The court’s core contribution is its concrete application of ICWA’s “active efforts” standard to a common and difficult posture: parents who become homeless, disengage, and disappear for long stretches. Relying on 25 C.F.R. § 23.2 (defining “Active efforts” as “affirmative, active, thorough, and timely”) and Alaska precedent (including Sylvia L. and Mona J.), the court treated OCS’s obligation as one of persistent, multi-modal engagement, not guaranteed success.

OCS’s efforts were deemed active because they were not merely bureaucratic referrals; they included repeated in-person outreach attempts (in Juneau), collaboration with the Tribe’s ICWA worker, repeated digital and telephonic attempts (emails, texts, calls, Facebook outreach), searches through multiple databases (including VINELink and PFD-related sources), posting flyers at Anchorage shelters, and sending detailed letters with scheduled appointments designed to lower barriers to re-entry. Crucially, the court emphasized that failed contact attempts can still be “active efforts” when a parent’s evasiveness or non-responsiveness renders service provision impracticable.

The court also distinguished this case from Clark J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: there, OCS effectively stopped trying for two years, and that lapse was “so egregious” that earlier efforts could not cure it. Here, while there were imperfections (e.g., some waning during trial and imperfect direct coordination with Ruby while she re-entered treatment), OCS’s overall efforts did not drop to the level of abandonment of engagement; they persisted throughout the case and during trial months.

2. ICWA serious-damage finding: “likely” harm, not certain harm

The court clarified a recurrent appellate confusion: ICWA does not require proof beyond a reasonable doubt that harm is certain, but beyond a reasonable doubt that harm is likely to result from continued custody. Applying Diana P.’s two-prong test, the court held the record supported both: (1) Ruby’s conduct (longstanding substance abuse, repeated prenatal exposure, neglect conditions) was likely to harm, and (2) the conduct was unlikely to change quickly enough given the decades-long history and very recent sobriety. The expert’s testimony—grounded in the facts of drug exposure, unsafe conditions, abandonment, and the need for “years of sobriety”—provided the ICWA-required causal link, and the court reaffirmed it may consider combined expert and lay testimony under Sylvia L. and L.G..

The court also rejected the attempt to use an asserted later custody outcome involving a different child (D.D.) to negate the serious-damage finding for Denver and Celia. Even if true, that later event did not undermine the risk assessment for these children, given their different ages/needs and the difference between a structured inpatient environment and the realities of “custody” more broadly.

3. Best interests: permanency over speculative near-term reunification

On best interests, the court relied on the children’s prolonged time in care (nearly three years), Ruby’s lengthy disappearance and ongoing substance-use history, and Ruby’s own testimony that she would need additional time to stabilize. Consistent with Christina J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. and the considerations articulated in Thea G., the court upheld the superior court’s decision to prioritize permanency and stability over uncertain or delayed reunification.

C. Impact

  • Active efforts jurisprudence becomes more operational: The decision validates a “toolbox” approach—collaboration with tribal partners, database searches, shelter flyers, repeated multi-channel outreach, and detailed letters with pre-set appointments—as affirmative steps that can satisfy ICWA when parents cannot be found or will not respond.
  • Limits on “you didn’t do enough while I was gone” arguments: Parents who voluntarily disappear cannot transform OCS’s persistent but unsuccessful outreach into “passive efforts,” particularly where OCS adapts to the parent’s circumstances (homelessness, lack of phone) using alternative outreach methods.
  • Clarification of the ICWA harm burden: The opinion underscores that the “beyond a reasonable doubt” standard applies to the court’s conviction that serious damage is likely, not to certainty that harm will occur—an important framing for trial courts crafting findings and for experts structuring testimony.
  • Best interests and time: The decision reinforces that late-breaking treatment engagement, while commendable, may not outweigh a child’s need for timely permanency after years in care.

IV. Complex Concepts Simplified

  • ICWA “active efforts” (25 U.S.C. § 1912(d)): More than giving a parent a list of services. OCS must actively help connect the parent to services and work to overcome barriers. The court looks at OCS’s efforts as a whole.
  • Active vs. passive efforts: “Active” means OCS takes steps with and for the parent (setting appointments, outreach, transportation help, collaboration with the Tribe). “Passive” resembles handing a plan to the parent and expecting the parent to do everything alone.
  • “Likely to result in serious damage” (25 U.S.C. § 1912(f)): The court must be convinced beyond a reasonable doubt that serious harm is probable if custody continues—not that harm is guaranteed.
  • Qualified expert witness: Under ICWA, an expert must testify supporting the serious-damage conclusion and addressing the causal relationship and tribal social/cultural standards.
  • Best interests: A child-centered inquiry balancing stability, safety, the parent’s progress, and whether reunification can happen in a timeframe that meets the child’s developmental needs.

V. Conclusion

This opinion strengthens Alaska’s ICWA practice in two practical ways. First, it confirms that when parents disengage or disappear, OCS can satisfy “active efforts” through persistent, diversified, and context-sensitive attempts to locate and re-engage—especially when done in collaboration with the Tribe—even if those efforts do not succeed. Second, it reiterates that ICWA’s heightened harm standard turns on the likelihood of serious damage from continued custody, and that long histories of substance abuse and prior harm can support that finding notwithstanding recent treatment progress. The decision ultimately affirms a child-centered emphasis on timely permanency where reunification remains uncertain after extended time in care.