James M. Hackett, Law Office of James M. Hackett, Fairbanks, for Appellant.
Gayle L. Garrigues, Assistant Attorney General, Fairbanks, Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee.
Before : FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.
A mother appeals the extension of a superior court order granting custody of her daughter to the Office of Children's Services (OCS). In the mother's first appeal, we affirmed an order extending custody. In this, her second appeal, the mother challenges a subsequent extension of custody. She raises two main arguments: the superior court erred in extending custody (1) without making the findings necessary to remove the child from parental custody under the Indian Child Welfare Act (ICWA), 25 U.S. C. § 1912(e); and (2) without making the ICWA placement and active efforts findings required by Alaska Child in Need of Aid (CINA) Rule 10.1(b). We conclude that: (1) neither ICWA nor Alaska's CINA statutes and rules require courts to make " removal findings" Before extending OCS's custody of a child; and (2) the superior court did not clearly err when it found that the child continued to be a child in need of aid and that extending custody was in her best interests. But CINA Rule 10.1(b) requires that courts inquire into and determine whether " active efforts" are being made Before extending custody. Because the court did not make this inquiry and determination, we remand.
II. FACTS AND PROCEEDINGS
Roberta was born in 1997 to Danielle.
Roberta is an " Indian child" under ICWA. Roberta's father was not involved in her life and his parental rights were terminated. OCS took emergency custody of Roberta on March 1, 2005, and custody was later extended for one year.  OCS filed a petition to terminate Danielle's parental rights in November 2006. Trial occurred in November and December 2007.  The court found that Roberta was a child in need of aid, but it also found that OCS failed to make active efforts to prevent the breakup of the Indian family and did not provide proof beyond a reasonable doubt that leaving Roberta in Danielle's custody would likely cause serious emotional or physical damage. The court concluded " it was in Roberta's best interests to be returned to Danielle."  The court " ordered that Roberta remain in OCS custody for up to an additional year pending reunification efforts." 
Danielle moved for reconsideration on December 10, 2007. She argued that CINA Rules 10.1(b)(2) and 17(c)(2) " expressly prohibit a final disposition order" given the court's finding that OCS had not made " active efforts."  On December 12, 2007, Danielle filed a motion for an order: (1) directing OCS to comply with active efforts requirements under 25 U.S. C. § 1912(d); (2) imposing sanctions against OCS for failing to make active efforts; and (3) entering a one-year supervision order in lieu of continued OCS custody of Roberta. The court held a hearing in April 2008 but did not rule on these motions.
In June 2008 the trial court issued its written decision from the termination trial. The court ordered continued OCS custody, and supervised and unsupervised visitation " until the [reunification] transition is complete, or until December 4, 2008, whichever
comes first."  In October 2008 the court issued written orders denying Danielle's motions for reconsideration, to compel active efforts, and for sanctions.
In Danielle's first appeal, we affirmed the superior court's December 2007 extension of OCS custody and its denial of Danielle's motion to invalidate that extension. We concluded the superior court did not err when it found that extending custody was in Roberta's best interests under AS 47.10.080(c)(1). We reasoned that " [t]he context of the [December 2007] hearing discussion shows that the court considered a return to Danielle's care to be in Roberta's long-term best interests," but the " court also recognized that work needed to be done for reunification efforts to succeed."  We explained: " The [trial] court found that it was not in Roberta's best interests to be immediately returned to Danielle, and that finding is more than adequately supported by the evidence in the record." 
In November 2008, OCS again petitioned to extend custody for up to another year. OCS stated the permanency plan remained reunification with Danielle and recommended that reunification continue through a gradual transition, culminating in permanent placement with Danielle by March 2009. Danielle opposed the motion, citing an October 2008 letter from Katharine Furniss, a program manager at Resource Center for Parents and Children, which stated that Danielle had " successfully engaged in all Family Reunification services" from January to October 2008, and recommended OCS " continue to increase unsupervised in-home visits and overnights with the intent to reunify [Danielle] and her daughter within the next six months."
The guardian ad litem (GAL) submitted a report in December 2008 advising against an " abrupt return home" and recommending extending custody so a six-month transition plan could be implemented. By this time, Roberta was staying with ...