ICWA “Active Efforts” May Center on Persistent Contact Attempts When a Parent Is Transient and Unengaged (Perfection Not Required)

1. Introduction

This appeal arises from a termination of parental rights proceeding involving an Indian child under the Indian Child Welfare Act (ICWA). Kendall H. (Mother) appealed the superior court’s termination order, challenging four core termination findings: (1) that her child Roger was a child in need of aid (CINA), (2) that she failed to remedy the conditions placing Roger at risk, (3) that the Office of Children’s Services (OCS) made ICWA-compliant “active efforts” to prevent breakup of the Indian family, and (4) that continued custody by Mother was likely to result in serious emotional or physical damage to Roger beyond a reasonable doubt. She also alleged due process violations based on asserted notice/representation defects early in the case and argued the superior court improperly conflated her conduct with the father’s.

The factual narrative driving the outcome is stark: prenatal substance exposure leading to newborn withdrawal symptoms; extended periods of parental noncontact; Mother’s homelessness and absence from hearings; repeated unsuccessful contact attempts by OCS; and Mother’s late, largely uncorroborated claim of sobriety.

2. Summary of the Opinion

The Alaska Supreme Court affirmed. It held the superior court:

• Did not clearly err in finding Roger was a CINA under AS 47.10.011(10) (substance abuse), and—because one ground suffices—did not need to reach the abandonment ground.
• Did not clearly err in finding Mother failed to remedy the conditions placing Roger at risk (AS 47.10.088(a)(2)), emphasizing the absence of meaningful evidence of treatment participation or verified sobriety.
• Did not err in finding OCS made ICWA “active efforts,” notwithstanding imperfections, where OCS’s sustained efforts reasonably focused on locating and engaging a highly transient, largely nonresponsive parent.
• Did not err in finding—beyond a reasonable doubt and supported by qualified expert testimony—that continued parental custody was likely to cause serious emotional or physical harm under ICWA 25 U.S.C. § 1912(f).
• Did not violate due process, because Mother failed to show “actual prejudice” from alleged early procedural irregularities and because the termination findings reflected individualized consideration of her conduct.

3. Analysis

3.1 Precedents Cited

A. Standards of review and termination architecture

• Sherman B. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. and Pravat P. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: Used for the proposition that CINA and failure-to-remedy determinations are factual findings reviewed for clear error. This frames the appellate posture: Mother needed to show the superior court’s findings were not just debatable, but mistaken on the whole record.
• Doe v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., Terry S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., and E.A. v. State, Div. of Fam. & Youth Servs.: Cited for the mixed law/fact nature of ICWA “active efforts” and “serious harm” determinations; these authorities justify de novo review of the legal standard while still deferring to supported factual underpinnings.
• Joy B. 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.: Supply the clear-error definition (“definite and firm conviction that a mistake has been made”), reinforcing why the court declined to reweigh credibility or second-guess the trial court’s inferential reasoning from Mother’s long nonengagement.

B. CINA finding and “one ground is enough”

• Barbara P. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: Supports the court’s focus on past conditions and risk creation at adjudication, and distinguishes adjudication from remedy. The opinion uses Barbara P. to reject Mother’s attempt to shift the CINA inquiry toward her claimed later improvements.
• Brad S. v. State, Dep't of Fam. & Cmty. Servs., Off. of Child.'s Servs.: Quoted for the rule that only one statutory ground under AS 47.10.011 is necessary. This is operationally important: once the court sustained the substance-abuse CINA ground, it mooted appellate scrutiny of the abandonment ground.

C. Failure to remedy and predictive use of history

• Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of Fam. & Youth Servs.: Invoked for the principle that a documented history of conduct can predict future behavior. The court relied on this to justify skepticism toward an unverified sobriety narrative in the face of long-term avoidance of services.

D. ICWA “active efforts” (and the “reasonable” vs “active” correction)

• Demetria H. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: Cited for the requirement (via ICWA) that active efforts be proven by clear and convincing evidence. It anchors the statutory threshold against which OCS’s engagement was measured.
• Clark J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., Winston J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., Casey K. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., and Betsy F. v. State, Dep't of Fam. & Cmty. Servs., Off. of Child.'s Servs.: These cases collectively supply two doctrinal pivots used in the opinion: (1) ICWA’s “active efforts” standard is more demanding than Alaska’s “reasonable efforts,” and (2) it is error (or at least “peculiar”) to describe the obligation as “reasonable” in an ICWA-controlled case. The court labeled the superior court’s “reasonable and active efforts” phrasing “misplaced,” but treated the ultimate question—whether the efforts met ICWA—as a legal issue it could review.
• Mona J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: Used repeatedly to define “active efforts” as affirmative and culturally appropriate assistance, to note OCS’s obligation exists even with parental noncooperation, and to emphasize that “active efforts” do not require perfection.
• Sam M. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. and Philip J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: Provide the “involvement in its entirety” lens. This matters because OCS’s record was uneven—many attempts to contact, few successful engagements. The court evaluated the full course of conduct, not just individual missed steps.
• M.W. v. State, Dep't of Health & Soc. Servs.: Mentioned to illustrate what “diligent inquiry” can look like when detailed in the record (affidavit listing searches). The court declined to credit OCS’s generalized appellate assertions of additional inquiries absent record specifics—signaling the importance of documenting search efforts.
• Sylvia L. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: Supports the idea that parental noncooperation constrains what OCS can do and that reunification efforts need not be perfect. The opinion draws on Sylvia L. to normalize a contact-heavy “active efforts” strategy where the parent remains unreachable.
• Walker E. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: Used to rebut the argument that OCS ignored barriers like transportation, where OCS offered bus passes/vouchers and attempted to coordinate via relatives/tribe. The opinion analogizes OCS’s efforts (bus passes, cab rides, collaboration) to those accepted in Walker E.

E. ICWA serious-harm finding (beyond a reasonable doubt) and expert testimony

• L.G. v. State, Dep't of Health & Soc. Servs.: Provides the two-part articulation for serious-harm findings: likely harm from the parent’s conduct and the unlikelihood the parent will change. This is the backbone of the opinion’s rejection of Mother’s “no imminent danger” framing.
• State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. v. Cissy A.: Cited to clarify the role of experts—particularly that a cultural expert need not personally establish causation if another qualified expert does. This allowed the court to treat the child welfare expert as the primary causation witness while still valuing cultural expert input.
• In re J.R.B. & T.W.G.: Quoted (through L.G.) for the idea that ICWA’s serious-harm inquiry looks to likely future harm; past conduct can rationally inform predictions of future risk.
• Bob S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. and Demetria H. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: Support the evidentiary method of “aggregating” expert and lay testimony. The opinion relies on this to uphold the harm finding based on combined expert testimony (child welfare + cultural) and the broader factual record.

F. Due process, notice, and prejudice

• Philip J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. and Jeff A.C., Jr. v. State: Establish de novo review for due process issues and the court’s approach to selecting the “most persuasive” rule of law.
• In re Estate of Fields: Supplies the baseline due process formulation: notice and opportunity to be heard appropriate to the case.
• Tara R. v. State, Dep't of Fam. & Cmty. Servs., Off. of Child.'s Servs.: Reinforces that parents are entitled to due process throughout CINA proceedings.
• Paula E. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. and D.M. v. State, Div. of Fam. & Youth Servs.: Provide the critical “actual prejudice” requirement and the lens for prejudice (“likelihood that proper notice might alter the outcome”).
• Payton S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.: Used alongside D.M. to reject the idea that early hearing defects necessarily taint termination, where the parent later had counsel and adequate notice at termination-related stages.

3.2 Legal Reasoning

A. CINA finding under AS 47.10.011(10): the opinion narrows the dispute to the correct temporal focus

Mother’s appellate strategy attempted to convert the CINA inquiry into a present-tense evaluation of improvement (“don’t presume relapse; credit later sobriety efforts”). The court rejected that reframing by returning to the statutory text and the adjudicatory posture: AS 47.10.011(10) asks whether parental ability “has been” impaired and “has resulted” in a substantial risk of harm. Thus, evidence of prenatal drug use and neonatal withdrawal symptoms directly supported the CINA finding, irrespective of later claimed change.

B. Failure to remedy: unverified assertions and minimal engagement are not “remedy”

On remedy, the court accepted that later sobriety evidence can matter, but found the record showed essentially no participation in treatment, missed UAs, and only scant corroboration. The superior court’s skepticism was not labeled an “assumption,” but a permissible inference from: (1) documented severe substance use and harm, (2) the treatment-oriented structure of the case plan, (3) repeated nonattendance/noncontact, and (4) lack of credible collateral confirmation. Under AS 47.10.088(b), the court could consider harm caused, history of conduct, and efforts made.

C. ICWA active efforts: when the parent is missing, “active efforts” can reasonably be “active locating”

The most practically significant reasoning concerns what ICWA “active efforts” look like when a parent is transient, homeless, and persistently unreachable. The court reiterated that “active efforts” require more than handing over referrals and should be culturally appropriate and sustained. But it also emphasized that OCS’s options are constrained by noncooperation; in this record, sustained outreach and attempts to secure contact were a rational and largely necessary focus. OCS’s efforts included repeated calls/emails/service attempts, coordination with the Tribe and caregiver, continued case planning, visitation arrangements, and transportation supports (bus passes/cab rides).

Importantly, the court acknowledged an imperfection—OCS ideally should have attempted to search the general street-area lead given by the caregiver—but held ICWA does not require perfection and the totality of efforts sufficed. The opinion also sends a documentation signal: appellate representations of “diligent inquiries” carry less weight when the record does not specify what was actually done.

D. ICWA serious harm: no “imminent danger” gloss; generalized expert principles must still connect to case facts

Mother argued OCS needed evidence of “specific, imminent danger” and attacked expert testimony as “generalized.” The court rejected an added “imminence” requirement as unsupported by law, emphasizing that ICWA’s inquiry is predictive (“likely future harm”). It then found the expert evidence case-specific enough: the child welfare expert tied parental substance use and abandonment dynamics to concrete harms (withdrawal symptoms, lack of a legally authorized medical decision-maker, instability), and the experts supported the conclusion that change was unlikely absent demonstrated treatment engagement. Under Cissy A. and Demetria H., the court accepted an expert “division of labor” (cultural expert + child welfare expert) and an aggregated proof model.

E. Due process: alleged early defects fail absent a showing of outcome-linked prejudice

Even assuming arguable notice/representation problems at early hearings, the court required Mother to demonstrate actual prejudice—i.e., a meaningful likelihood the outcome would have changed. Because Mother had counsel and notice at adjudication and termination, and because she identified no concrete lost opportunity that would likely have altered termination findings, the due process claim failed under D.M., Paula E., and Payton S. The court also rejected the “conflation” argument because the termination order discussed the parents separately and grounded the findings about Mother in her own substance use history and nonengagement.

3.3 Impact

Although nonprecedential, the decision is likely to be used as persuasive guidance in three recurring ICWA/CINA contexts:

• Active efforts where a parent is effectively missing. The opinion supports the view that persistent, multi-channel outreach (including coordination with tribe, counsel, and relatives) can satisfy “active efforts” when a parent’s unavailability prevents deeper service delivery—while cautioning agencies to document “diligent inquiry” steps with specificity.
• Separating adjudication from remedy. The opinion reinforces that CINA findings—especially under AS 47.10.011(10)—are grounded in past impairment and risk creation, while sobriety proof becomes central at the remedy and ICWA harm stages.
• Resisting an “imminent danger” requirement for ICWA § 1912(f). By rejecting “imminence” as a substantive element, the court preserves established Alaska doctrine that serious-harm findings are predictive and can be built from past conduct plus expert causation testimony.

4. Complex Concepts Simplified

• CINA (Child in Need of Aid). A legal status under AS 47.10.011 that authorizes state intervention when statutory grounds are met (here, substance abuse creating substantial risk of harm).
• Termination elements (Alaska + ICWA overlay). Generally requires: (1) a CINA ground, (2) failure to remedy (or failure within reasonable time), (3) OCS efforts (ICWA: “active efforts”), and (4) best interests; ICWA also requires (5) proof beyond a reasonable doubt, with qualified expert testimony, that continued custody is likely to cause serious damage.
• “Active efforts” vs “reasonable efforts.” “Active efforts” (ICWA) is more demanding: the agency must affirmatively help the parent access and complete services, not merely refer. But what is “active” is evaluated in context; noncooperation can limit feasible services.
• “Beyond a reasonable doubt” in ICWA. This is a high burden of proof for the serious-harm finding under 25 U.S.C. § 1912(f). It does not automatically add extra substantive elements like “imminent danger”; it heightens confidence in the predictive harm conclusion.
• “Actual prejudice” in due process challenges. A parent must show more than a procedural misstep; they must show a realistic chance the result would have been different absent the error.

5. Conclusion

The Alaska Supreme Court affirmed termination because the record supported: (1) a substance-abuse CINA ground based on prenatal use and resulting harm, (2) failure to remedy shown by lack of treatment engagement and unverified sobriety, (3) ICWA “active efforts” satisfied largely through sustained attempts to locate and engage a transient, nonresponsive parent—despite acknowledged imperfections, and (4) a beyond-a-reasonable-doubt serious-harm prediction supported by qualified expert testimony connecting parental conduct to concrete risks and low likelihood of change. The due process claims failed for lack of demonstrated prejudice and because the superior court’s findings reflected individualized consideration of Mother’s conduct.