Josh L. v. State, Department of Health & Social Services, Office of Children's Services

276 P.3d 457, 2012 WL 1759306, 2012 Alas. LEXIS 73

• Court: Alaska Supreme Court
• Decided: May 18, 2012
• Docket: S-14160
• Status: Published

Opinions

OPINION

PER CURIAM.

I. INTRODUCTION

A father appeals the termination of his parental rights to his daughter, an Indian child within the meaning of the Indian Child Welfare Act (ICWA).¹ The father challenges the superior court's findings that the Office of Children's Services (OCS) made active efforts to prevent the breakup of his Indian family, arguing that OCS failed to investigate placement with his extended family members and did not provide him with adequate visitation and remedial services. Because we conclude that OCS made active efforts, we affirm.

II. FACTS

A. Eva's Early Childhood And Special Needs

Robin and Josh ² are both enrolled members of different Alaska Native villages. Eva, their daughter, was born in 1996. Robin was often absent and Josh cared for Eva for the first six years of her life with help from his mother, Susan, and one of his sisters, Sandra. In 2002, Eva lived with her grandmother while Josh served a two-month jail sentence.³ Before Josh's release, Eva's grandmother sent her to live with Robin.

In August 2006, Eva assaulted her mother and tried to injure herself. Eva was placed on overnight observation at the Behavioral Health unit of the Yukon Kuskokwin Corree-tional Center. Through the correctional center, Eva was sent to the North Star Residential Treatment Center in Anchorage and admitted for treatment. In April 2007, North Star reported to OCS that Eva needed to be placed in an acute care facility but North Star could not locate Robin. OCS assisted North Star in locating Robin and obtaining her permission to admit Eva to the North Star Acute Care Facility. OCS also opened an in-home case with Robin to assist her in keeping in contact with Eva and engaging in Eva's treatment. A social worker visited her on a monthly basis and arranged for her to participate in Eva's weekly family therapy sessions by telephone, but Robin failed to participate consistently in the therapy sessions and often did not return OCS's calls, In October 2007, Eva was transferred to a therapeutic treatment home in Anchorage for emotionally-disturbed and behaviorally-challenged children. Anchorage Community Services (ACS) became involved and developed a treatment plan for Eva.

Eva was diagnosed with cognitive disorders stemming from exposure to alcohol, post-traumatic stress disorder from exposure to physical violence and abuse, attention deficit hyperactivity disorder (ADHD), and major depressive disorder. She also experienced delusions and hallucinations. She had difficulty managing her moods, would become easily agitated and frustrated, was prone to "explosive outbursts" and tantrums, and had trouble sleeping. She functioned best in highly structured settings and required lists, prompts, and coaching to complete daily activities, such as brushing her teeth, making her bed, and dressing herself.

B. OCS Assumes Custody Of Eva And Works Towards Reunification.

In September 2008, ACS contacted OCS and reported that Eva was ready to be discharged to a therapeutic foster home but Robin could not be located. Robin had not communicated with Eva's ACS case manager in over two months and had not communicated with Eva in over one month. Josh's whereabouts were also unknown at the time. ACS filed a protective services report with OCS and OCS filed an emergency petition for temporary custody and adjudication of Eva as a child in need of aid.

Robin did not attend Eva's treatment plan review on September 80, 2008, or the initial case conference in October. OCS located Josh at a correctional facility where he was incarcerated while awaiting trial on criminal charges for sexual assault and incest. Josh participated in the initial case conference with his attorney, a representative from his tribe, and Eva's primary social worker, Melissa Blair. Josh's tribe had previously provided OCS with his parents' contact information and requested that OCS contact them as a potential placement for Eva. At the conference, Josh also suggested one of his sisters, Rachel, as a possible placement. Blair noted she would need to consult Eva's therapist before scheduling visits between Eva and Josh. Josh asked to send letters to Eva and was told to send the letters to OCS and they would be sent on to Eva. Blair recommended that Josh obtain mental health, anger management, and substance abuse assessments. He was to participate in available programs while in jail and complete the remaining tasks after being released.

OCS developed a case plan for Josh and Robin and sent copies of the plan to both Josh's and Robin's tribes. The case plan stated a relative search was in progress and OCS was sending letters to the tribes seeking possible relative placements. The permanency goal for Eva was reunification with Robin. Robin's objectives included engaging in Eva's treatment, visiting by phone on a scheduled basis, and attending parenting classes and counseling to understand Eva's special needs. Josh's objectives included completing assessments for mental health, anger management, and substance abuse; attending parenting classes and counseling to understand Eva's special needs; and engaging in Eva's therapy when she was ready.

In December 2008, OCS filed a predisposition report with the superior court. According to the report, a social worker was working with Josh to coordinate telephonic visitation with Eva, although this was difficult due to limitations on his ability to use the phone at the correctional facility. Social worker Blair later testified she proposed arranging calls through Josh's attorney, and faxed Josh his case plan and court filings. The predisposition report also stated that Eva was placed in a therapeutic foster home and that Robin and Josh both supported her placement there, although Josh wanted some of his family members to be considered for placement as well. The report stated that a social worker would look into family members requested for placement when Eva was ready to be discharged from the therapeutic foster home.

C. Adjudication Of Eva As A Child In Need Of Aid

In January 2009, Josh signed several stipulations agreeing that Eva was a child in need of aid under AS 47.10.011(1) (abandonment) and (2) (incarceration), that it would be in Eva's best interests for OCS to assume temporary custody of her, that OCS had made "reasonable and active efforts" to prevent the breakup of his Indian family, and that there was good cause to deviate from ICWA's placement preferences by placing Eva in a therapeutic foster home in Anchorage because of her special needs. Based on these stipulations, the superior court found that Eva was a child in need of aid and awarded temporary custody to OCS. The court also agreed with the stipulation that Eva's special needs justified deviation from ICWA's placement preferences and allowed her to remain in her therapeutic foster home. The court ordered Josh to work with OCS to update his case plan and complete his assigned tasks, to have no contact with Eva except as arranged by OCS, and to provide OCS with the names and locations of any relatives willing to have Eva placed in their homes.

D. OCS's Continued Reunification Efforts And Placement Investigations.

OCS updated the case plan in February 2009. Blair noted that she had not heard from Josh but would continue to attempt to contact him. Robin had been moving from home to home because she was unable to keep her trailer warm, and this was a concern because Eva needed a stable and consistent environment. The updated plan required Robin to "demonstrate a stable, consistent home for herself and her family" and provide "heat, food, and shelter." OCS updated the case plan again in March 2009, changing Eva's permanency goal to adoption with family reunification as a concurrent goal, because neither parent had made any progress with their case plans.

In June and July 2009, OCS continued to contact and meet with Robin, and warned her that her parental rights would be terminated if she continued to fail to make progress on her case plan. In July 2009, Josh was convicted of the sexual assault and incest charges that had been pending since February 2008 and was sentenced to 99 years of imprisonment.⁴

On October 5, 2009, at a permanency hearing, the superior court found that Eva was still a child in need of aid, that neither parent had made substantial progress on remedying their conduct, and that OCS had made active efforts up to that point.

Also in October 2009, Josh's attorney sent Blair an email proposing placement with Josh's sisters, but the email did not specify which of his six sisters Josh wanted OCS to consider for placement. Blair later testified that she believed Josh's attorney was going to talk to Josh about the services Eva needed and identify which sisters could meet those needs. According to Blair, OCS had looked into placement with Josh's parents at that point, but she had concerns about their ability to meet Eva's special needs and concerns about whether adequate support services would be available to Eva in their village.

A few days after receiving the email, Blair was transferred to a different OCS office. OCS did not assign a new primary social worker to Robin and Josh until April 2010. Holly Lehnhausen, one of Eva's secondary social workers, helped out with some of the duties of a primary social worker during this time. Lehnhausen wrote Robin multiple letters but received no response. She also wrote to Josh offering to facilitate communication with Eva. Josh began sending Eva letters and pictures that she and her therapist would review during their therapy sessions. Lehnhausen also sent letters to Josh from Eva, along with pictures and schoolwork. Lehnhausen asked Josh about possible placement with his family members and he again said his sisters were possibilities. Lehnhausen contacted Blair and was told the sisters "were not viable placement options [because] they [were] known to have sex offenders in the home."

In April 2010, OCS petitioned to terminate Robin's and Josh's parental rights to Eva. OCS also assigned Michelle Rogers to Eva's case as the new primary social worker.

In July 2010, OCS worked with Eva's foster parents to send a newsletter Eva had written about her life in Anchorage to her relatives, including Josh's mother, Susan, and his sister, Sandra. OCS also mailed Susan and Sandra phone cards with instructions for calling in to Eva's weekly therapy sessions, but neither responded.

In August 2010, OCS assigned another primary social worker, Iurie Leahu, to Eva's case. Leahu asked Josh's tribe about its position on the possible placement of Eva with Josh's family, but the tribe did not respond. In September 2010, Leahu met with Susan and Sandra, who live together, about conducting an adoption study. He informed them of Eva's diagnoses, her special needs, and the information they would need to provide as part of the adoption study. Susan said she would like to "think about the placement" and requested a visit with Eva in Anchorage. At the termination trial in October 2010, Leahu testified he intended to visit Susan's home as the next step in OCS's placement investigation, but OCS had some concerns about her ability to provide the supervision Eva required. Leahu also planned on investigating an Anchorage couple that had expressed interest in adopting Eva,. The Anchorage couple operated a therapeutic foster home similar to the one where Eva was living and had occasionally provided care for Eva over the years. According to Eva's foster mother, Eva wanted to be adopted by this couple.

E. Termination Of Parental Rights

Following a four-day trial in October 2010, the superior court terminated both Robin's and Josh's parental rights to Eva. The court noted that Eva's guardian ad litem supported termination, that Josh's tribe had taken no position regarding termination of his parental rights, and that the tribe had "admitted that Eva needed a lot of services that might not be available in the village." The court found that: (1) Eva was a child in need of aid under AS 47.10.011(1) (abandonment) and (2) (incarceration); (2) Robin and Josh had not remedied the conduct or conditions that placed Eva at harm because Robin was still unwilling and unable to care for Eva, and Josh was serving a 99-year prison term and had failed to make adequate provisions for Eva's care; (8) OCS had satisfied ICWA's active efforts requirement; (4) Eva would suffer serious emotional or physical harm if returned to either parent's custody; and (5) terminating both Robin's and Josh's parental rights was in Eva's best interests.

Josh appeals the superior court's finding that OCS made active efforts to provide remedial services to prevent the breakup of his family, arguing that OCS failed to investigate placement with his extended family members and provided him with limited visitation and services. He also appeals the superior court's finding that termination of his parental rights was in Eva's best interests. Robin has not appealed.

III STANDARD OF REVIEW

Whether OCS complied with the active efforts requirement is a mixed question of law and fact.⁵ Accordingly, we review the legal issues de novo and the factual determinations for clear error.⁶ A finding is clearly erroncous when a review of the entire record in the light most favorable to the prevailing party leaves us with a "definite and firm conviction" that a mistake has been made.⁷ "Conflicting evidence is generally insufficient to overturn the superior court, and we will not reweigh the evidence when the record provides clear support for the superi- or court's ruling." ⁸

IV. DISCUSSION

Before terminating parental rights under AS 47.10.088, the superior court must first find by clear and convincing evidence that the child is a child in need of aid under one of the grounds set forth in AS 47.10.011.⁹ Second, the court must find the parent has failed to remedy the conduct or conditions placing the child at a substantial risk of harm.¹⁰ Where the parent is incarcerated, however, the court may instead find (1) the period of incarceration during the child's minority is significant given the child's age and needs, (2) no other parent is willing and able to care for the child, and (8) the incarcerated parent failed to make adequate provisions for the child's care.¹¹ Third, in the case of an Indian child, the superior court must find by clear and convincing evidence that OCS made "active efforts" to provide remedial and rehabilitative programs to prevent the breakup of the Indian family.¹² Fourth, the superior court must find by a preponderance of the evidence that termination of parental rights is in the child's best interests.¹³ Finally, in the case of an Indian child, the superior court must find by evidence beyond a reasonable doubt, including expert testimony, that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.¹⁴

A. The Superior Court Did Not Err In Finding OCS Complied With ICWA's Active Efforts Requirement.

The superior court had previously found that OCS made active efforts at the October 2009 permanency hearing, and the parties conceded at the October 2010 termination trial that OCS had made active efforts from the time of removal in September 2008 until October 2009. Starting from this base, the court then examined OCS's efforts since October 2009, noting that Josh had no primary social worker from October 2009 to April 2010, but during that time a secondary social worker had communicated with Josh and facilitated the exchange of letters and pictures between him and Eva,. When Leahu took over the case in August 2010, he had no contact with Josh but he did contact Josh's tribe and Josh's mother about possible placement options for Eva. The court observed:

In this case, [Josh] was in jail before [Eval was taken into custody, and he will still be there when [Eval is an adult. The State tried to engage [Robin], the only parent available for reunification, but their efforts failed. Under such circumstances, there is not much the State could do (especially for [Josh] ) to prevent the family's breakup or to reunite them.

Although the court acknowledged "OCS'[s] efforts were not perfect in this case, especially regarding visitation and family contact for [Josh]," it found OCS's efforts were sufficient under these circumstances to satisfy the statutory requirements for active efforts. Josh challenges this ruling on several grounds.

1. Reliance on prior findings and stipulations

As a threshold matter, Josh argues that the superior court improperly relied on its October 2009 active efforts finding, the tribe's statement that necessary services might not be available in the village, and OCS's efforts on Robin's behalf. We disagree.

Josh first argues that the superior court erred in relying on its prior active efforts finding in its termination order and in considering only OCS's efforts since October 2009 in determining whether OCS had made active efforts. But the parties conceded at the termination trial that OCS made active reunification efforts through October 5, 2009 and agreed they were not going to contest the trial court's prior active efforts finding.¹⁵ Josh does not argue that he was prevented from challenging that finding at trial or presenting evidence on OCS's reunification ef forts prior to October 2009.¹⁶ Accordingly, the superior court did not err in relying on its prior finding and the parties' concession in its final order.¹⁷

Josh next argues that the superior court erred in relying on the tribe's statement that "(Eval needed a lot of services that might not be available in the village." But the court merely noted this statement when describing the tribe's position in its overview of the case. The court did not rely on the statement in its active efforts analysis, which properly focused on OCS's reunification efforts.

Finally, Josh argues the superior court erred in relying on OCS's efforts on Robin's behalf. Robin was not present at trial and her attorney orally stipulated OCS had made active efforts on her behalf. Josh argues that the superior court erred by accepting this stipulation because it did not comply with CINA Rule 14, which requires such stipulations to be in writing and signed by the parent,¹⁸ and that we should not rely on OCS's efforts on Robin's behalf when reviewing the superior court's active efforts finding pertaining to him. He requests that we remand with instructions to the superior court to reconsider its active efforts finding without relying on Robin's attorney's stipulation. We reject this request.

First, the superior court's order terminating Robin's parental rights did not rely on her attorney's oral stipulation, but summarized and relied on OCS's reunification efforts on her behalf. Second, the superior court properly considered OCS's efforts towards Robin in determining whether OCS made adequate efforts on Josh's behalf, In Dashiell R. v. State, Department of Health & Social Services,¹⁹ we held that the superior court properly considered OCS's reunification efforts on the mother's behalf in finding that OCS had made active, though ultimately unsuccessful, efforts to reunify an incarcerated father's family and prevent the termination of his parental rights:

[The superior court was correct to point to efforts OCS made regarding the mother.... In this case, had the children been able to stay with the mother, who was not incarcerated, there is no indication Dash-iell's parental rights would have been terminated, because there would have been no need for the children to be placed elsewhere. As the superior court noted-and Dashiell does not contest-the [State's efforts regarding the mother were "very active." We view these efforts as an important aspect of the [SJtate's active efforts to keep the family together.[²⁰]

As in Dashiell R., given Josh's incarceration throughout OCS's custody of Eva and his 99-year sentence, OCS's efforts on Robin's behalf, the one parent available for reunification, were relevant when considering OCS's efforts to reunify the family and prevent the termination of Josh's parental rights.

2. Placement with extended family members

Josh's main argument is that OCS failed to make active efforts because it did not actively investigate placement with his extended family members. He relies on our opinion in Jon S. v. State, Department of Health & Social Services, Office of Children's Services,²¹ and an opinion from the Minnesota Court of Appeals, In re Welfare of M.S.S.²²

We recently rejected this argument in David S. v. State, Department of Health & Social Services, Office of Children's Services,²³ holding that "ordinarily the question of whether a placement decision complies with ICWA's placement preferences will not be germane to the elements of termination because nothing in ICWA requires a consideration of the ICWA placement preferences in the decision whether to terminate parental rights." ²⁴

We observed that the statutory scheme of ICWA supports this interpretation.²⁵ Seetion 1912(d) provides that any party seeking foster care placement or termination of parental rights regarding an Indian child "shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." ²⁶ Section 1914 then provides that certain parties, including the parent, may challenge foster care placement or termination of parental rights by showing the action "violated any provision of sections 1911, 1912, and 1913" of ICWA.*²⁷ Absent from this list is section 1915, which provides that in any proceeding for adoption, foster care, or preadoptive placement, preference must be given to placing the child with a relative, another member of the child's tribe, or another Indian family, unless there is "good cause" to deviate from these preferences.²⁸ Under this statutory scheme, "termination of parental rights may not be invalidated by showing a violation of ICWA preferences." ²⁹

We recognize that the placement preferences under section 1915 are critical to ICWA's goal of promoting the stability and security of Indian tribes and families. Section 1915 has been described by the Supreme Court as "the most important substantive requirement imposed on state courts" under ICWA.³⁰ But as we held in David S., the issue of placement is generally distinet from the issue of providing remedial and rehabilitative services to reunify the child's family and prevent the termination of parental rights.

In David S. we also "recognize[d] the possibility that rare cases may exist in which OCS's early placement decisions may directly impact the ability of parents to fulfill the requirements of their case plans and thus may be part of OCS's active efforts 'designed to prevent the break up of the Indian family,'" observing that "a child's placement might affect a parent's ability to participate in remedial efforts."³¹ The dissent hinges its conclusion on this premise, arguing that "this is exactly the kind of case in which OCS's placement efforts are relevant and OCS's independent duty to investigate ICWA-compliant placements overlays and at least informs, if not directs, its duty to make active efforts designed to prevent the breakup of an Indian family." The dissent explains that earlier holdings of this court indicated that incarceration alone could not constitute abandonment because it does not involve willful conduct; however, this holding was later overturned by the legislature, which determined that incarceration could constitute abandonment if certain factors are met, including that "the incarcerated parent has failed to make adequate provisions for care of the child during the period of incarceation..."³² The dissent then challenges the superior court's finding in this case that "on a 'clear and convincing basis ... Josh had not 'made adequate arrangements' for Eva in light of his unavailability" because Josh "contended that he 'attempted to reach out to family members for assistance' in making adequate arrangements for Eval, butl OCS failed to make active efforts to assist him." The dissent concludes that it is OCS's failure that led to Eva's continued status as a child in need of aid, not Josh's actions, because "OCS has an active-efforts duty to consider, evaluate, and take action on an incarcerated parent's request for alternative placement under ICWA's standards." We disagree.

As we identified in David S., there may be cases where a "child's placement might affect a parent's ability to participate in remedial efforts," but these cases are rare and this is not such a case.³³ Given Josh's long-term incarceration, Eva's placement with one of his relatives would not have affected his ability to participate in remedial efforts or fulfill his case plan requirements. In October 2008, OCS developed a case plan for Josh; his objectives included completing assessments for mental health, anger management, and substance abuse, attending counseling to understand Eva's special needs, and engaging in Eva's therapy when she was ready. In November 2008, OCS filed a predisposition report, where the social worker proposed arranging calls through Josh's attorney. Additionally, Josh stipulated in January 2009 that there was "good cause" to deviate from ICWA's placement preferences and allow Eva to remain in her therapeutic foster home in Anchorage because of her special needs. By February 2009, the social worker had not heard from Josh, but was continuing to attempt to contact him. By the time of the October 2009 permanency hearing, the court found that Josh had still not made substantial progress to remedy his conduct. During this time period, Eva's placement with one of Josh's relatives would not have affected Josh's ability to work on his case plan objectives, such as obtaining an anger management or mental health assessment or attending parenting classes and engaging in Eva's therapy. Josh did not begin interacting with Eva until after this October 2009 hearing, and he did not submit his sisters as possible placements until October 2009. Moreover, according to his social worker, OCS had looked into placement with Josh's parents during this time, but they had concerns about their ability to meet Eva's special needs. Finally, Josh did nothing more than suggest placement with his "sisters," without specifying a particular placement, and OCS found them all to be unsuitable as placements because they were "known to have sex offenders in the home...." Thus, it was Josh's lack of action, not OCS's failure to investigate Josh's preferred placements, that led to Eva's continued status as a child in need of aid during this time. Under these circumstances, OCS was not required to actively pursue placement with Josh's relatives as part of its active efforts to prevent the termination of Josh's parental rights.³⁴

3. Visitation and remedial services

Josh also argues that OCS failed to make active efforts on his behalf because it did not arrange for adequate visitation between Eva and himself, made little effort to assist him with his case plan, and left him without a primary social worker for six months. In describing what constitutes "active efforts," we have said:

Passive efforts are where a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition. Active efforts, the intent of the drafters of the Act, [occur] where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own.[³⁵]

No "pat formula" exists for distinguishing between active and passive efforts, and we have adopted a case-by-case approach for the active efforts analysis.³⁶

Although a parent's incarceration does not relieve OCS of its duty to make active efforts, it "significantly affects the seope of the active efforts" OCS must make to satisfy the requirement.³⁷ We have stated "the practical cireumstances surrounding a parent's incarceration-the difficulty of providing resources to inmates generally, the unavailability of specific resources, and the length of incarceration-may have a direct bearing on what active remedial efforts are possible." ³⁸ Additionally, as discussed above, OCS's reunification efforts on behalf of the non-incarcerated parent are an "important aspect" of OCS's efforts towards the incarcerated parent.³⁹

The dissent believes that OCS's active efforts included a "duty to actually help Josh remedy the conditions that caused Eva to be a child in need of aid .... [and] help him make 'adequate arrangements' for Eva." Moreover, the dissent argues that "onee it became clear that remedial efforts with Robin would not be successful-which occurred by July 2009 ...-OCS's active efforts should have turned to assisting Josh make adequate arrangement for Eva by investigating placement with Josh's family." The dissent acknowledges the superior court's finding that Josh did not make adequate arrangements to meet Eva's needs, but that "the reality is that Josh could only fulfill this responsibility through and with the help of OCS." The dissent contends that onee Josh requested OCS to consider placement with his relatives, "OCS's active efforts obligation required it to contact Josh's family to determine willingness, to undergo home studies, and to assess his family's ability to address Eva's needs."

We disagree because the dissent's analysis confuses the obligations of the incarcerated parent and OCS. While we agree with the superior court's observation that OCS's efforts in this case were "not perfect," we cannot conclude, given Josh's incarceration throughout OCS's custody of Eva and the significant length of his current sentence, that the court's active efforts finding is clearly erroneous. As the superior court noted, Josh agreed OCS had made active efforts through October 5, 2009. Although he did not have a primary social worker for six months from October 2009 through April 2010, a secondary social worker communicated with Josh during that time and facilitated the exchange of letters and pictures between him and Eva. During that time, the secondary case worker asked Josh about placement with his family and he identified his sisters as possibilities; however, after speaking with his former case worker, she was informed his sisters were not viable options because they were known to have sex offenders in the home. OCS also developed a case plan for Josh during this period and kept him informed by sending him updates and court filings. The initial case conference notes indicate Josh was to participate in available programs while in jail and complete his remaining tasks after being released. Josh was never released from jail but was instead sentenced to 99 years of imprisonment. And OCS has no authority to require the Department of Corrections to provide any assessments, treatments, or classes to an inmate.

Throughout this time, however, OCS made active efforts to facilitate Eva's reunification with Robin, "the only parent available for reunification." The dissent argues that onee it became clear that Robin was not an option, OCS had a duty to contact Josh's family to determine their willingness and ability to meet Eva's needs. However, the record indicates OCS did do that before the termination trial in October 2010. By October 2009, OCS case workers already had doubts about Susan's ability to meet Eva's special needs and whether Eva could obtain adequate support services in her native village. In July 2010, OCS attempted to facilitate contact between Eva and Josh's family; it sent a newsletter from Eva and phone cards to Josh's mother and sister so they could call into her therapy sessions. However, neither relative responded. In August 2010, OCS asked Josh's tribe about possible placements with family members; again, they received no response. Since 2008, Josh expressed his desires to have Eva placed with family members; notably, none of these family members came forward and expressed their willingness to care for Eva. In fact, when OCS asked Josh's mother, Susan, about adoption in September 2010, she said "she would like to think about the placement...." But she never agreed to adopt Eva. Josh had the obligation to make "adequate arrangements" for Eva's care, which means he must identify placements with people that are willing and able to meet Eva's needs.⁴⁰ In this case, he failed to do so. He did nothing more than suggest relative placements, none of whom were suitable and many of whom did not even respond to OCS's overtures Under these cireum-stances, we cannot say it was clearly erroneous for the superior court to conclude that OCS satisfied its duty to make active efforts to prevent the breakup of Josh's family and the termination of his parental rights.

IV. CONCLUSION

For these reasons, we AFFIRM in all respects the superior court's order terminating Josh's parental rights.

CHRISTEN, Justice, not participating.

WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.

1 . 25 U.S.C. § 1903(4) (2006).

2 . We use pseudonyms to protect the family's privacy.

3 . Josh has a history of violent criminal and sexual offenses.

4 . Josh has appealed both his conviction and sentence. His appeal is currently pending before the court of appeals.

5 . Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 222 P.3d 841, 846 (Alaska 2009) (citing T.F. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 26 P.3d 1089, 1092 (Alaska 2001)).

6 . Id. (citing A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 259 (Alaska 1999).

7 . Ralph H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 255 P.3d 1003, 1008 (Alaska 2011) (citing Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 212 P.3d 756, 761 (Alaska 2009)).

8 . Id. at 1012 (citing Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008)).

9 . AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).

10 . AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i).

11 . AS 47.10.080(o); CINA Rule 18(c)(1)(B); see also Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 222 P.3d 841, 846 (Alaska 2009).

12 . 25 U.S.C. § 1912(d) (2006); CINA Rule 18(c)(2)(B). Active efforts are required even when a parent is incarcerated. Dashiell R., 222 P.3d at 846.

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

14 . 25 U.S.C. § 1912(f) (2006); CINA Rule 18(c)(4).

15 . At the October 2010 termination trial, the superior court agreed to take judicial notice of its prior active efforts finding from the October 2009 permanency hearing. The court then asked whether any party was going to argue OCS had not made active efforts through October 5, 2009. Josh's attorney, Robin's attorney, and the guardian ad litem all said no. The court then stated, "Okay ... no one's going to contest that active efforts were[made] up till October 5, 2009." None of the parties objected.

16 . Josh acknowledges in his briefing on appeal that the evidence presented at trial "covered the entirety of the case, not just facts that developed after October 2009, including ... actions taken by OCS throughout the case."

17 . We reached a similar conclusion in Nicole H. v. State, Dep't of Health & Soc. Servs., Mem. Op. & J. No. 1246, 2006 WL 895084 (Alaska, Apr. 5, 2006), an unpublished opinion in which we observed that the superior court was not bound by its prior active efforts finding in a termination proceeding, but it was "well within the trial court's discretion" to treat its earlier finding as presumptively binding as long as the court did not preclude the parties from presenting new evidence or arguments challenging its earlier ruling. Id. at *6.

18 . CINA Rule 14 provides: "In the case of an Indian child, a stipulation to adjudication or disposition is not binding on a parent or Indian custodian unless it is in writing, agreed to in court (whether in person or telephonically), and signed by the parent or Indian custodian."

19 . 222 P.3d 841 (Alaska 2009).

20 . Id. at 850.

21 . 212 P.3d 756 (Alaska 2009). In Jon S. we listed several actions that constituted "substantial evidence" OCS had satisfied the active efforts requirement, some of which included placement-related actions. Id. at 764-66. We did not specifically address or hold that OCS was required to make such placement efforts to fulfill its active efforts requirement.

22 . 465 N.W.2d 412 (Minn.App.1991). In M.S.S. the Minnesota court held that as part of the active efforts requirement, the state was required to investigate foster placement with the father's brother before terminating the father's parental rights. Id. at 418-19. The Minnesota court has since distinguished M.S.S. on the grounds that the father specifically requested the child be placed with his brother, offered evidence supporting the proposed placement, and the tribe endorsed the proposed placement. See In re Welfare of Children of J.B., 698 N.W.2d 160, 170 (Minn.App.2005); In re Welfare of Child of Wilson, No. C6-02-1940, 2003 WL 21266612, at *2 (Minn.App., June 3, 2003). Here, Josh did not make and his tribe did not endorse a specific placement request, and Josh stipulated to Eva's placement in the therapeutic foster home due to her special needs.

23 . 270 P.3d 767 (Alaska 2012).

24 . Id. at 779. We recently relied on David S. to reject a similar argument in Doe v. Dep't of Health & Soc. Servs., Office of Children's Servs., 272 P.3d 1014 (Alaska 2012).

25 . David S., 270 P.3d at 779.

26 . 25 U.S.C. § 1912(d) (2006).

27 . 25 U.S.C. § 1914 (2006).

28 . 25 U.S.C. § 1915(a)-(b) (2006).

29 . David S., 270 P.3d at 779. We also noted that we had previously reached a similar conclusion in decisions holding ICWA does not require consideration of placement options in determining whether termination of parental rights was in the child's best interests. See id. at 780 & n. 36 (citing Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1120 (Alaska 2010); Jacob W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., Mem. Op. & J. No. 1319, 2008 WL 5101809, at *8 (Alaska, Dec. 3, 2008)). Other courts addressing this issue have generally reached the same conclusion. See id. at 779 n. 33 (collecting cases).

30 . Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36-37, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).

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32 . AS 47.10.080(o)(3).

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34 . Josh also challenges the superior court's best interests finding for the same reasons, arguing the court failed to consider whether placement with his extended family members was in Eva's best interests. We reject this argument for the same reasons discussed above. Additionally, we have previously rejected the argument that a superior court must consider placement options when determining whether termination of parental rights is in the child's best interests. See Lucy J., 244 P.3d at 1120 ("[Nlothing in ICWA requires consideration of placement options in determining whether to terminate parental rights." (quoting Jacob W., 2008 WL 5101809, at *9) (internal quotation marks omitted)). Josh does not otherwise challenge the superior court's findings that termination of his parental rights was in Eva's best interests because she "needs a calm, solid and reliable environment," a home "equipped to care for her considerable needs," and that, given Josh's lengthy sentence, "[aldoption offers the best hope for stable and consistent parenting" for Eva.

35 . A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 1999).

36 . Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 249 P.3d 264, 271 (Alaska 2011) (quoting Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 235 P.3d 203, 213 (Alaska 2010)).

37 . A.A., 982 P.2d at 261.

38 . Id.; see also Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 222 P.3d 841, 849 (Alaska 2009) (stating the circumstances surrounding a parent's incarceration "may have a direct bearing on what active remedial efforts are possible," and these circumstances include "the duration of the parent's incarceration and the services possible for incarcerated parents").

39 . Dashiell R., 222 P.3d at 843-44, 850.

40 . See AS 47.10.080(o).