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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jack C. v. State, Division of Family and Youth Services (5/2/2003) sp-5686

Jack C. v. State, Division of Family and Youth Services (5/2/2003) sp-5686

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
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     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


JACK C.,                      )
                              )    Supreme Court No. S-10690
             Appellant,            )
                               )     Superior Court No. 1KE-99-51
     v.                       )
                              )    O P I N I O N
                              )    [No. 5686 - May 2, 2003]
             Appellee.             )

          Appeal  from the Superior Court of the  State
          of    Alaska,   First   Judicial    District,
          Ketchikan, Trevor N. Stephens, Judge.

          Appearances:   Michael P. Heiser,  Ketchikan,
          for  Appellant.   Stacie L. Kraly,  Assistant
          Attorney   General,  and  Gregg  D.   Renkes,
          Attorney General, Juneau, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.


           Under  authority of AS 47.10.088, the  superior  court

terminated Jack C.'s1 parental rights to his two young daughters.

Jack  C. claims on appeal that the court clearly erred in finding

that  the state proved by clear and convincing evidence  that  he

had  failed  to remedy, within a reasonable period of  time,  the

conduct that placed his two children at substantial risk, and  in

finding  that returning the children to him would place  them  at

substantial  risk  of  physical or mental injury.   The  superior

court  did  not  clearly  err.  Essentially  undisputed  evidence

established  that Jack C. had sexually abused both  children  and

that he failed to complete individualized treatment programs  for

sexual  abuse,  substance abuse, and anger  management  within  a

reasonable  time.   We therefore affirm the  termination  of  his

parental rights.


           Jack  C. and Paula R. are the parents of Nina  C.  and

Julie C.  Julie was born in March 1993 and Nina was born in March

1995.   During  Jack  and Paula's "off and on" relationship,  the

couple  regularly abused alcohol and drugs and  Jack  engaged  in

domestic  violence  against Paula.  Their relationship  ended  in

1998.  Jack,  Julie, and Nina moved to Alaska in January 1999.2

          In December 1999 Nina, then age four, complained to her

live-in  babysitter, Kelly V., that her "butt hurt."  When  Kelly

asked  her why she was in pain, Nina responded that her Dad "puts

his  wiener in my mouth, pees in my mouth, and sticks his  wiener

in  my  private parts."  Kelly reported Nina's complaints to  the

Alaska  Department  of  Health and Social Services,  Division  of

Family and Youth Services (DFYS).  Kelly also reported that  Jack

used drugs and that he called the girls names.  She also recalled

an  incident in which Jack arrived at her home, drunk, with  both

girls in the car.  On the same day Kelly reported the abuse,  Sue

Patrick, a DFYS social worker, interviewed the two children,  who

confirmed Kelly's report.  Nina also told the social worker  that

her father had hit her.

           DFYS  immediately took emergency custody of  Nina  and

Julie.3  DFYS petitioned the superior court the next day  for  an

adjudication that Nina and Julie were children in need of aid and

for  an  order  committing the children to DFYS  custody.   After

conducting  a  hearing  on the state's petition,  Superior  Court

Judge  Thomas  M.  Jahnke held that there was probable  cause  to

believe  that  the  children  were  in  need  of  aid  under   AS

47.10.011(1), (6), (7), (9), and (10), and that it would  not  be

in  the children's best interests to be placed back in Jack  C.'s

home.  The superior court committed the children to the temporary

custody of DFYS and also ordered both parents to participate  "in

the  development of a case plan and . . . family support services

as  set  forth in that case plan."  The court forbade the parents

to  have direct or indirect contact with the children unless they

arranged visitation through DFYS.

           Paula's  DFYS  case plan required  that  she  maintain

regular   contact  with  the  children,  complete  a  residential

substance  abuse  and alcohol program, follow  through  with  all

treatment  recommendations, and stay  clean  and  sober  for  six

months.   DFYS  planned  to conduct a home  study  for  Paula  to

determine whether it should place the two girls with her.  Jack's

DFYS  case plan required that "he be evaluated for individualized

programs for substance abuse/alcohol treatment, anger management,

parenting[,] . . . and sex offender treatment (SOTP), and that he

complete the recommended programs."

           In  an amended petition for an adjudication that Julie

and  Nina  were children in need of aid, DFYS also  alleged  that

Julie had disclosed that her father "choked her once when he  was

drunk and she could not breathe."

           In  February 2000 an indictment charged Jack with  two

counts  of  sexual  abuse of a minor in the  first  degree  under

AS 11.41.434(a)(2)(A) for sexual penetration of Nina.

           The  March  2000  report of guardian  ad  litem  (GAL)

Patricia  Muzzana reported that she had observed that both  girls

had engaged in "sexual acting out" and were "knowledgeable beyond

their  years  in sexual matters."  The GAL recommended  that  the

children  "remain in the custody of the Department of Health  and

Social  Services  for  at least six months or  until  a  relative

placement can be determined and approved."

           Judge  Jahnke  conducted the adjudication  hearing  in

March  2000,  and per the parties' stipulation ordered  that  the

children  remain in DFYS custody for six more months  while  DFYS

conducted  home  studies  of  the  children's  relatives.    Jack

requested  that either his mother, Mary C., or his sister,  Pilar

C.,  have  custody of the girls.  Paula's eldest daughter,  Billi

R.,  wanted  the girls placed with her.  The court again  ordered

Jack  and  Paula  to participate in the family  support  services

recommended by DFYS and to work with the division to update their

case plans.

           In  August 2000 DFYS filed another petition to  extend

its  custody  of  the  children up to one year.   A  report  DFYS

submitted  in  support indicated that Jack had not completed  his

sex  offender treatment program and was "not willing to  talk  to

any  mental  health  professionals about any  subject  until  his

criminal  case  [was] resolved."  The report also indicated  that

Jack  was  not working on his alcohol and drug problem with  "any

particular focus."

           DFYS's  report  also described a  July  2000  incident

between  Jack and his daughters.  Jack had approached them  while

they were on a day-care field trip.  He hugged the two girls  and

told  them that he loved them.  This unsupervised contact  was  a

direct violation of the superior court's order that Jack not have

direct  or  indirect  contact with the  children  unless  it  was

arranged  with  DFYS.   Because of  the  incident,  Julie  became

"hysterical"  and Nina "was able to voice her fear  that  he  was

coming  back."  Superior Court Judge Trevor N. Stephens  extended

DFYS's custody of the two girls for one year.4

           In November 2000, eleven months after taking emergency

custody of the girls, DFYS filed a report recommending that Julie

and  Nina  remain  in  long-term foster care  permanently.   DFYS

reported  that  it had determined that the girls' mother,  Paula,

was not a proper placement due to drug and alcohol abuse and that

Jack's  mother and his sister were not proper placements  either.

DFYS  had  not  yet  completed a home study  for  Paula's  eldest

daughter,  Billi R.  DFYS also reported that Jack and  Paula  had

not  complied  with  the  requirements of their  respective  case

plans.   The  report  concluded that  Jack  had  been  "minimally

compliant"  with  respect to his participation in  the  parenting

classes  and alcohol and drug program.  He also had not completed

sex  offender  treatment  because he "refuse[d]  to  address  any

issues related to the allegations of sexual or physical abuse due

to  his  pending criminal trial."  Paula had not had any  contact

with  her  children  in  over three months  and  had  not  sought

admission to a residential drug and alcohol treatment program.

          A week later, DFYS filed a second amended child-in-need-

of-aid petition informing the court that Julie had disclosed that

Jack  had  sexually abused her and that Jack had been charged  by

indictment  in October 2000 with sexual abuse of a minor  in  the

first degree for sexual penetration of Julie in 1999.5

           In May 2001 Jack pleaded guilty to a reduced charge of

one  count  of  sexual  abuse of a minor in  the  second  degree.

Superior  Court Judge Michael A. Thompson sentenced Jack  to  six

years  in prison, with two years suspended, for a total  of  four

years of incarceration.  Judge Thompson recommended that Jack "be

classified  in  a  sex offender program" during incarceration  at

Meadow  Creek  Correctional Center.  Judge Thompson  also  placed

Jack  on ten years probation following his release, during  which

he  was  to  have  "no  contact, direct  or  indirect"  with  his

daughters or any other females under the age of sixteen  "without

the  prior  written  permission of  the  sex  offender  treatment

provider   and  the  probation  officer."   As  a  condition   of

probation,  Judge Thompson also ordered that Jack participate  in

any  sex  offender  treatment programs  that  the  Department  of

Corrections or a probation officer might require.

           Jack  appealed  his sentence to the  Alaska  Court  of

Appeals.   He argued that the trial court erred in not postponing

the  sentencing hearing to allow him to complete a  sex  offender

evaluation and also that his four-year prison sentence  and  ten-

year probation period were excessive.

           After  Jack was sentenced, DFYS filed a second  report

for  a  permanency  hearing in June 2001  recommending  that  the

superior  court  terminate Jack and Paula's parental  rights  and

that  Julie  and  Nina  be  adopted  by  extended  family.   DFYS

concluded  that  Jack  had failed to avail himself  of  parenting

programs   or   sex  offender  treatment  programs   before   his

incarceration.   Paula had not had contact with the  girls  since

September  2000 and still had not sought treatment for  her  drug

and alcohol abuse.

           Jack  began  serving his sentence in  June  2001.   He

entered  a  sex  offender treatment program at the  Meadow  Creek

Correctional  Center  on September 4, 2001.   He  admitted  to  a

history  of  drug  addiction,  sexual  promiscuity,  and  violent

behavior.  He also admitted to sexually abusing both daughters.

           The  sex  offender  treatment  team  at  Meadow  Creek

estimated  that  Jack  needed  at  least  twenty-nine  months  to

complete an individual treatment plan.  The team also recommended

that  he  focus on his anger management, parenting, and substance

abuse issues.  The team reported that Jack had also been involved

in  a  number  of  incidents involving "anger  and  crossing  the

boundaries  of  others"  while  participating  in  the  treatment


           DFYS  filed  a petition in November 2001 to  terminate

parental  rights of both parents.  DFYS argued that because  Jack

had  sexually and physically abused his daughters and had  failed

to  fulfill the requirements of his case plan, the superior court

should terminate his parental rights.  DFYS also pointed out that

because  Jack's four-year prison sentence and ten-year  probation

period forbade him from having any contact with his daughters  or

any  female  under  the  age  of sixteen  without  prior  written

permission  from  a  sex offender treatment  program  officer  or

parole officer, he would not be able "to parent these children at

any time during their minority."

          In January 2002 Jack was transferred to the Lemon Creek

Correctional  Center.  He was released on bail in  February  2002

pending his sentence appeal.  The treatment team at Meadow  Creek

disagreed with his release.

           The  treatment team removed Jack from the sex offender

treatment  plan at Meadow Creek in March 2002 for "non-compliance

with  his Individual Treatment Plan." The treatment team observed

that "[h]e was not honest with group, staff, or Treatment Team  .

. . lacked commitment . . . [and was] more focused on many issues

outside of the Program."

          In its discharge summary, the treatment team identified

several  risk factors that contributed to Jack's sexually abusive

behavior  and  recommended corresponding corrective treatment  to

reduce the likelihood of future sexual abuse by Jack.  These risk

factors included: Jack's "one-sided mindset," which caused him to

seek  "that  which would satisfy himself" and meant that  he  was

"lacking  psychological insight . . . and  empathy  for  others";

his substance abuse, sexual promiscuity, theft, and drug-dealing;

his   conflicts  with  the  children's  mother,  Paula;  and  his

unsupervised access to his minor daughters.

           Jack's total criminality score on the Hare PCL-R scale

classified  him as psychopathic.  The treatment team  also  found

that  he posed a "high" recidivism risk for sexual assault  under

the Hanson/Harris rating.  He was also diagnosed under DSM IV  as

having   polysubstance  dependence  and  antisocial   personality

disorder.  The team classified Jack as a "Level III" offender, an

individual  with "a higher risk to reoffend as an  untreated  sex

offender."   As  a  Level III offender, he  was  ineligible  "for

victim  contact  and/or family reunification where  a  former  or

potential victim is in residence."

           The  court of appeals ultimately denied Jack's  appeal

and  affirmed the superior court's sentence and probation period.

The  court  concluded that "[g]iven the seriousness  of  [Jack's]

conduct and [his] apparent unwillingness or inability to directly

acknowledge that he sexually abused his daughters, Judge Thompson

was justified in . . . [choosing] a 10-year term of probation  so

that  [Jack] would be under Department of Corrections supervision

until his children were significantly older."

           A  hearing  on DFYS's petition to terminate  Jack  and

Paula's  parental rights commenced in May 2002.   Paula  did  not

attend.   Jack requested that the court continue the  hearing  so

that  he  could obtain a sex offender treatment evaluation.   The

court  agreed to bifurcate the hearing, permitting the  state  to

present  its  evidence on the scheduled trial date  and  allowing

Jack  to present his evidence in June 2002.  Lori Hudson, a  DFYS

social  worker,  testified in May and on rebuttal  in  June  that

although Jack completed general programs designed for the general

public, he had not completed the recommended individual treatment

programs  which the case plan required.  Jack testified  in  June

that  he  had completed the programs specified in his case  plan.

He testified that he had completed parenting and anger management

programs and received an alcohol/substance abuse evaluation.   He

also admitted that he had sexually abused both children.

           Judge  Stephens held that the division had  proved  by

clear  and convincing evidence that Julie and Nina were  children

in  need  of aid under AS 47.10.011(1), (6), (7), and  (10)6  and

that  it would not be in the children's best interests to  return

them  to  Jack's custody because he "is an untreated sex offender

at  a  high  risk to reoffend."  The superior court further  held

that the children should not be in Jack's custody because he  had

"failed  to  remedy the conduct . . . that placed [his daughters]

in substantial risk of harm" by not completing the individualized

anger management, parenting, and alcohol/substance abuse programs

required  by  his case plan.  The court noted that Jack  did  not

complete  a sexual offender treatment program, and that the  SOTP

requirement  was the most important of the programs  Jack's  case

plan  required.  The court also held that DFYS had  proved  by  a

preponderance of the evidence that it had made reasonable efforts

to  allow  the  children to return to Jack or Paula.   The  court

therefore  terminated  Jack  and  Paula's  parental  rights   and

responsibilities  under  AS  47.10.088.   Judge   Stephens   then

committed  both  children  to Department  of  Health  and  Social

Services custody for adoptive purposes under AS 47.10.080(d).

           Jack  appeals the termination of his parental  rights.

His  main argument is that it was clear error to find that he had

failed  to remedy within a reasonable period of time the  conduct

that placed the children at risk.


     A.        Standard of Review

                     We apply the clearly erroneous standard when

          reviewing   the  superior  court's  factual  findings.7

          "[C]lear  error  arises only when  our  review  of  the

          entire  record  leaves  us with  a  definite  and  firm

          conviction  that the superior court made  a  mistake."8

          We  review  de novo whether a superior court's  factual

          findings   satisfy  the  applicable  CINA   rules   and


     B.         The  Trial Court Did Not Err in Holding that DFYS
          Proved  by  Clear  and Convincing  Evidence  that  Jack
          Failed Within a Reasonable Period of Time To Remedy the
          Conditions that Placed His Children at Substantial Risk
          of Harm.
           Under  AS  47.10.088(a)(1)(B), a court  may  terminate

parental  rights  to  a child if the court  finds  by  clear  and

convincing evidence per AS 47.10.011 that the child is a child in

need of aid and that the parent:

          (i)    has   not  remedied  the  conduct   or
          conditions in the home that place  the  child
          at substantial risk of harm; or
          (ii) has failed, within a reasonable time, to

          remedy the conduct or conditions in the  home

          that  place the child in substantial risk  so

          that  returning the child to the parent would

          place  the  child  at  substantial  risk   of

          physical or mental injury.[10]

           Jack  does not challenge the finding that his children

are  in  need  of aid under AS 47.10.011(1), (6), (7),  or  (10).

Rather, he challenges the trial court's finding that DFYS  proved

by  clear and convincing evidence under AS 47.10.088 that he  had

failed  to  remedy,  within a reasonable  time,  the  conduct  or

conditions that placed his daughters at substantial risk of harm.

Jack  argues  that because he has made "substantial  efforts"  to

remedy his behavior and deserves additional time to complete  his

case plan, it was improper to terminate his parental rights.

            Jack's  arguments  are  unpersuasive.   There  is  no

legitimate  dispute about the facts discussed in Part  II  above.

The  record  demonstrates that Jack has  not  completed  the  sex

offender  treatment program (SOTP) prescribed by  his  DFYS  case

plan.   While  incarcerated, he participated in a SOTP  for  only

four months before he was released on bail to appeal his criminal

sentence  and  then  was discharged from the program.   The  SOTP

treatment  team determined that Jack needed at least  twenty-nine

months  to  complete  his individual treatment  program.   Having

participated  in only four of the recommended twenty-nine  months

of treatment, Jack remains essentially untreated.  Jack testified

at  his  termination trial that Dr. Tony Mander, his own  expert,

had  recommended that Jack participate in a SOTP.   Because  Jack

must  still participate in about two more years of treatment,  he

cannot  complete  the  remainder of the required  SOTP  within  a

reasonable time.

            Jack   has   had  sufficient  time  to  complete   or

substantially  complete a sex offender treatment  program.   DFYS

developed  Jack's case plan in early 2000, soon after  DFYS  took

emergency  custody  of  his children in  December  1999.   Before

incarceration,  Jack  did  not  seek  sexual  offender  treatment

offered by DFYS.  Nor did he avail himself of any of the services

DFYS offered him before he went to jail, because he was unwilling

to discuss the details of the sexual abuse of his daughters while

his  criminal  case  was pending.  Assuming there  is  a  tension

between one's constitutional right not to incriminate oneself and

one's  rights as a parent, time was nevertheless passing  in  the

lives  of  Jack's  young  children.  At  the  conclusion  of  the

termination trial in June 2002, Jack's children had already  been

in  DFYS  custody for nearly two and a half years.  Jack has  not

consistently  demonstrated any initiative to remedy the  behavior

that placed his daughters at a substantial risk of harm.  Because

of the children's young age, it is especially important that they

be   placed   in  permanent  homes  expeditiously.11    As   DFYS

persuasively   argues,  the  children  "should  not   be   denied

permanency while they wait for their father to work on  his  case


           There  is no doubt that Jack's propensities place  his

children  at  risk  of  substantial harm.  As  an  untreated  sex

offender  who was assessed as having a "high" risk of recidivism,

Jack  poses  a significant and particularized threat  of  further

sexual  abuse.  Further, the consequences of the threat he  poses

are grave; his children have already been severely traumatized by

his  conduct.  Even after the children were removed  from  Jack's

custody, they were significantly traumatized by a brief encounter

with  him  in a public setting.  Subsequent abuse would  be  even

more traumatizing.

           The record also establishes that Jack did not complete

the  individualized  anger management,  parenting,  or  substance

abuse  treatment programs his case plan required.  Although  Jack

completed  general anger management and parenting  programs,  and

received a substance abuse evaluation, he did not follow  through

with   any  of  the  programs'  individual  recommendations   for

treatment.   The  superior court did not clearly err  in  finding

that  DFYS proved by clear and convincing evidence that Jack  had

failed  to  remedy  the  conduct  that  placed  the  children  in

substantial risk of harm.  Nor did it clearly err in finding that

returning  them  to his custody would place them  at  substantial

risk of physical or mental injury.

           Jack also argues that AS 47.10.080(o) applies to  this

case.   That statute permits a court to determine that a parent's

incarceration  is  a  legitimate ground for terminating  parental

rights under some circumstances.12  Jack argues that there is  no

clear  and convincing evidence under AS 47.10.080(o)(3)  that  he

failed to make adequate provisions for his children's care  while

he  was  incarcerated.  It is irrelevant here that Jack allegedly

made  adequate  provision  for the  children's  care  during  his

incarceration.  Alaska Statute 47.10.080(o) only applies when the

trial  court terminates parental rights under AS 47.10.080(c)(3).

Jack's  rights  were  terminated  under  AS  47.10.088,  not   AS


           Jack  briefly asserts in the conclusion of his opening

brief that the trial court "also erred in finding that DFYS  made

reasonable efforts to permit [Nina] and [Julie] to return to  the

custody of their father."  But this assertion is unsupported, and

the  next  few  sentences in his brief argue a  different  issue:

that  Jack  made "substantial efforts" to remedy his conduct  and

made "substantial progress" in his treatment.  As seen above, the

trial  court  rejected those contentions, and the record  clearly

establishes   that  Jack  did  not  complete  the  individualized

treatment  that he needs.  This argument is consequently  without



          We AFFIRM the termination of Jack C.'s parental rights.

1    This opinion uses pseudonyms for all family members.
2     Jack and Paula were both incarcerated in 1998.  During  the
parents'  incarceration, the children lived with  Jack's  mother.
The State of Washington filed a petition against both parents for
child  support  on  behalf of Julie.  The court entered  judgment
against  Jack and Paula for child support for Julie  and  awarded
Jack  custody of Julie.  No mention was made of custody or  child
support for Nina.  Paula was still incarcerated when Jack brought
the girls to Alaska.
3     DFYS  had  investigated two previous reports of  abuse  and
neglect  for  Jack  C.'s  family,  but  those  reports  were  not
4     This  case  was  reassigned to Judge Stephens  after  Judge
Jahnke retired.
5    When Julie was interviewed by investigators, she stated that
her  father  put  his  hand inside her panties  and  touched  her
genitals.  Julie stated that she took her father's hand away  and
told  him,  "Stop, Dad. I mean it."  Julie refused  her  father's
request to touch his genitals.  Julie added that her father  told
her, "Don't tell . . . , or I'll get in trouble."
6    AS 47.10.011 provides in part:

          [T]he court may find a child to be a child in
          need of aid if it finds by a preponderance of
          the   evidence  that  the  child   has   been
          subjected to any of the following:
          (1)  a parent or guardian abandoned the child
          as  described in AS 47.10.013, and the  other
          parent is absent or has committed conduct  or
          created conditions that cause the child to be
          a child in need of aid under this chapter;
               . . . .
          (6)    the  child  has  suffered  substantial
          physical harm . . . as a result of conduct by
          or  conditions created by the child's  parent
          [or] guardian . . . ;
          (7)  the child has suffered sexual abuse, . .
          .  as  a  result of conduct by or  conditions
          created by the child's parent [or] guardian .
          . . ;
               . . . .
               (10) the     parent,    guardian,     or
                    custodian's ability to  parent  has
                    been substantially impaired by  the
                    addictive  or habitual  use  of  an
                    intoxicant,  and the  addictive  or
                    habitual use of the intoxicant  has
                    resulted in a substantial  risk  of
                    harm to the child . . . .
7     See  M.W. v. State, Dep't of Health & Soc. Servs., 20  P.3d
1141, 1143 (Alaska 2001).
8    Id.
9    Id.
10     AS  47.10.088(a)(1)(B);  see  also  AS  47.10.088(b).   AS
47.10.088(b) provides in part:

          In   making   a   determination   under   [AS
          47.10.088(a)(1)(B)], the court  may  consider
          any  fact  relating to the best interests  of
          the child, including
         (1)   the  likelihood of returning the  child
         to  the parent within a reasonable time based
         on the child's age or needs;
         (2)   the  amount of effort by the  parent  to
         remedy  the conduct or the conditions  in  the
         (3)  the harm caused to the child;
         (4)   the  likelihood that the harmful conduct
         will continue; and
         (5)   the  history of conduct by or conditions
         created by the parent.
11    See AS 47.05.065(5).  AS 47.05.065 provides in part:

          The legislature finds that
               . . . .
                    (5)  numerous studies establish that
          (A)   children undergo a critical  attachment
          process before the time they reach six  years
          of age;
               . . . .
          (C)   it  is  important  to  provide  for  an
          expedited placement procedure to ensure  that
          all  children, especially those under the age
          of  six  years,  who have been  removed  from
          their  homes  are  placed in permanent  homes
12    AS 47.10.080(o) provides that:

          For   purposes  of  terminating  a   parent's
          parental rights under the standards in (c)(3)
          of this section, the court may determine that
          incarceration  of  the parent  is  sufficient
          grounds  for determining that a  child  is  a
          child in need of aid under AS 47.10.011 as  a
          result  of  parental  conduct  and  that  the
          parental  rights  of the incarcerated  parent
          should  be  terminated if  the  court  finds,
          based on clear and convincing evidence, that
          (1)   the  period of incarceration  that  the
          parent  is  scheduled  to  serve  during  the
          child's  minority is significant  considering
          the  child's age and the child's need for  an
          adult's care and supervision;
          (2)   there is not another parent willing and
          able to care for the child; and
          (3)   the  incarcerated parent has failed  to
          make  adequate  provisions for  care  of  the
          child during the period of incarceration that
          will be during the child's minority.