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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Terry S. v State, Dept of Health & Social Services, Office of Children's Services (09/28/2007) sp-6172
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
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| TERRY S., | ) |
| ) Supreme Court No. S- 12463 | |
| Appellant, | ) |
| ) Superior Court Nos. | |
| v. | ) 3AN-03- 00406/00407/00408 CP |
| ) 3AN-05- 00449/00450/00451 P/G | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH & | ) O P I N I O N |
| SOCIAL SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) No. 6172 September 28, 2007 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Kenneth C. Kirk, Kenneth Kirk &
Associates, Anchorage, for Appellant. Mary
Ann Lundquist, Assistant Attorney General,
Fairbanks, and Talis J. Colberg, Attorney
General, Juneau, for Appellee. Lisa B.
Nelson, Anchorage, for Guardian Ad Litem.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
Terry S. appeals a number of orders stemming from a
guardianship case involving his three children. We conclude that
the superior court did not err in (1) rejecting Terrys motion to
disqualify the superior court judge presiding over the case; (2)
finding by clear and convincing evidence that Terrys continued
custody of the children would result in serious emotional or
physical damage to the children; (3) requiring Terry to
participate in sex offender treatment before being allowed
visitation with his children; or (4) failing to apply the beyond
a reasonable doubt standard to its findings. We therefore affirm
the superior courts decisions and orders in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
Terry S. and Veronica L. had three daughters together.
At the time this appeal was briefed, the oldest daughter, Jodi
L., was sixteen years old; Tania L. was twelve; and Bobbi L. was
eight.1 All three children are Indian children within the
meaning of the Indian Child Welfare Act.
The family life of Terry, Veronica, and their children
was tumultuous. Terry and Veronicas relationship was on again
off again. The children lived with both parents, together and
separately, moving frequently and often unexpectedly. There were
multiple allegations that both parents had engaged in substance
abuse and that Terry had engaged in domestic violence. On three
separate occasions, Veronica filed for restraining orders against
Terry. And, most relevant to this appeal, on May 28, 2003, the
eldest daughter, Jodi, reported that Terry had sexually abused
her. According to Jodi, Terry molested her two times, warning
her each time that her mother would be harmed or die if Jodi told
anyone about the incidents. Terry denied and continues to deny
that these incidents occurred.
On September 5, 2003, Veronica died unexpectedly. On
the same day, the Office of Childrens Services (OCS) took
emergency custody of all three children and placed them with
their maternal grandmother. According to OCSs child in need of
aid (CINA) petition, emergency custody was justified by the
mothers death and Terrys history of domestic violence, assault,
substance abuse, and sexual abuse of his oldest daughter.
B. Proceedings
1. The CINA case
On January 23, 2004, Terry entered into a stipulation
and order in open court before Superior Court Judge Sharon L.
Gleason. At the outset of this stipulation, Terry agreed,
without admitting any criminal act, that his children were
children in need of aid because they had been exposed to domestic
violence and because Jodi had disclosed sexual abuse by her
father. Terry, however, expressly denie[d] the sexual abuse.
The stipulation and order then went on to note that the
superior court had found by clear and convincing evidence that
the children would likely suffer serious emotional or physical
damage if left in the custody of the father; that OCS would
retain temporary custody of the children; that the children would
continue in their placement with their maternal grandparents; and
that OCS had devised a case plan for family reunification that
all parties agreed was reasonable.
As part of OCSs case plan, Terry was required to
participate in a sexual offender/mental health assessment and
comply with any treatment recommendations. Terry agreed in the
stipulation and order that this case plan was in the best
interests of his children and expressed his intention to work on
a reunification plan to regain custody of [Tania and Bobbie]. He
noted, however, that he underst[ood] and respect[ed] [Jodis] wish
not to live with him at the present time.
After the stipulation and order was entered, the
guardian ad litem (GAL) moved the superior court for a factual
finding by clear and convincing evidence that Terry had in fact
sexually abused Jodi. Terry objected, arguing that he had not
had an opportunity to present evidence due to the execution of
the stipulation and order. To address this concern, the superior
court scheduled an evidentiary hearing at which Terry and all
other parties would be afforded an opportunity to present
additional evidence.
The evidentiary hearing took place as scheduled, but
neither Terry nor any other party presented additional evidence.
As a result, the superior court ultimately found by a
preponderance of the evidence that Terry had sexually abused
Jodi. The superior court did not, however, make this finding by
clear and convincing evidence.
In April 2004 the superior court held a disposition
hearing. A month after this hearing, the superior court issued
an order in which it found that OCS was making reasonable efforts
to provide remedial services and rehabilitative programs to
reunify the family; that although the father was in compliance
with OCSs case plan, OCSs efforts at reunification had not yet
proven successful; and that the children would therefore continue
in OCSs custody for a period not to exceed two years.
In November 2004 the superior court held a permanency
hearing. After the close of this hearing, the court found that
the children continued to be children in need of aid; that
efforts to reunify the family had not yet been successful; and
that removal remain[ed] necessary to prevent imminent physical
damage or harm to the children. It then went on to explain that
the permanent plan for Jodi was guardianship with her maternal
grandmother while the permanent plan for the other two children
was reunification with their father conditioned upon his
successful completion of sex offender treatment.
2. The guardianship case
On April 1, 2005, OCS filed a petition for
guardianship, asking that the childrens maternal grandmother be
named as all three childrens guardian. Although OCS could simply
have requested the superior court overseeing the CINA case to
appoint a guardian as part of the ongoing CINA proceedings,2 it
instead chose to frame its request as a separate guardianship
case under AS 13.26.030.085.
Because the Public Defender Agency does not have
statutory authority to represent parents in guardianship cases,3
Terrys assistant public defender who had represented him
throughout the entirety of the CINA proceedings was unable to
represent Terry with regard to OCSs efforts to appoint the
childrens maternal grandmother as guardian. As the assistant
public defender noted to the superior court at the time, [t]he
Alaska Public Defender Agency cannot represent parties in a
guardianship proceeding. Thereafter, Terry requested and
received new court-appointed counsel. On May 18, 2005, attorney
Leonard Anderson was appointed as counsel for Terry but withdrew
from the case a month later based on an undisclosed conflict. On
June 29 attorney Kenneth Kirk was appointed as counsel for Terry
and has continued to represent him since.
The guardianship case was initially assigned to
Superior Court Judge Morgan Christen, but was soon after
administratively reassigned to Judge Gleason the same judge who
was already overseeing the CINA case.4 On July 7, 2005, shortly
after Mr. Kirk was assigned as his counsel, Terry filed a motion
to set aside the judicial assignment of Judge Gleason. In this
motion, Terry noted that he would have moved to disqualify the
judge earlier but had been awaiting counsel. He also noted that
this motion should be count[ed] as [his] one discretionary
preemption. In response, OCS filed an opposition to the motion
to set aside the judicial assignment, and the GAL moved to
consolidate the CINA and guardianship cases. On July 19, 2005,
Superior Court Judge Sen K. Tan denied Terrys motion to set aside
the judicial assignment. On August 3, 2005, Judge Gleason
granted the GALs motion and consolidated the CINA and
guardianship cases.
Terry did not oppose the entry of letters of
guardianship for Jodi, which were signed on October 24, 2005.
Thereafter, the superior court held a four-day guardianship
proceeding with regard to the two other children. On February 9,
2006, the superior court issued a memorandum decision on the
issue of guardianship. In this decision, the superior court
found by clear and convincing evidence that Terry had sexually
abused Jodi. The court then went on to find by clear and
convincing evidence that placing the two younger children in
Terrys home would likely result in serious emotional or physical
damage to the children. On the basis of this finding, the
superior court concluded that the childrens maternal grandmother
would be appointed guardian as soon as letters of guardianship
were filed.
In response to the superior courts decision, Terry
moved for clarification on whether the guardian would have the
right to determine whether there should be contact between the
children and their father. On May 8, 2006, the superior court
entered new letters of guardianship for the two younger children
which stated that [i]f the father of the child is not satisfied
with the amount of visitation allowed, he may petition th[e]
court for specific visitation rights. Soon thereafter, Terry
petitioned the superior court for specific visitation rights.
After further proceedings, the superior court issued an order in
which it concluded that Terry was not entitled to visitation,
either supervised or unsupervised, until he successfully
participates in sex offender treatment.
Terry now appeals.
III. STANDARD OF REVIEW
The proper application of the rule governing the
peremptory disqualification of judges in civil cases Alaska Rule
of Civil Procedure 42(c) is a question of law which we review de
novo.5
[W]hether substantial evidence supports the [superior]
courts conclusion [under the Indian Child Welfare Act] that an
Indian child is likely to be seriously harmed if returned to his
parent is a mixed question of fact and law.6
A superior courts factual findings are reviewed under
the clearly erroneous standard.7 A superior courts legal
findings are reviewed de novo.8 We may affirm a judgment on any
grounds that the record supports, even grounds not relied on by
the superior court.9
IV. DISCUSSION
Terry raises four arguments on appeal: (1) the superior
court erred in denying his motion to disqualify Judge Gleason in
the guardianship case; (2) the superior court erred in finding by
clear and convincing evidence that Terrys continued custody of
the children would result in serious emotional or physical damage
to the children; (3) the superior court erred in requiring Terry
to participate in sex offender treatment before being allowed
visitation with his children; and (4) the superior court applied
the wrong legal standard since the requirement that Terry
participate in sex offender treatment amounted to a constructive
termination of Terrys parental rights.
A. The Superior Court Did Not Err in Denying Terrys Motion
To Disqualify Judge Gleason in the Guardianship Case.
Alaska Statute 22.20.022 provides for the peremptory
disqualification of
district court and superior court judges in civil and criminal
actions.10 As we have previously explained, this statute creates
and defines a right the right to have a fair trial before an
unbiased and impartial judge.11 Although this substantive right
is statutory in origin, its scope and procedural requirements are
controlled in civil cases by Alaska Rule of Civil Procedure
42(c).12 Rule 42(c) maintains, in relevant part, that each side
[to a civil action] is entitled as a matter of right to a change
of one judge and of one master and that this right may be
exercised simply by filing a pleading naming the judge to be
changed without specifying any grounds for the change.13 The rule
further specifies that the right to change a judge is waived when
a party knowingly participates before that judge in [a]ny
judicial proceeding which concerns the merits of the action and
involves the consideration of evidence or of affidavits.14
In the case at hand, Terry argues that the superior
court violated his statutory right to peremptorily disqualify one
judge when it denied his motion to set aside the assignment of
Judge Gleason to the guardianship case. To support this claim,
Terry cites our decision in Staso v. State, Department of
Transportation15 and characterizes that case as creating a bright-
line rule that litigants are entitled to peremptorily disqualify
one judge in any case that involves a new case number, new filing
fees, and new process. Terry notes that in the case at hand,
although OCS could have simply requested the superior court
overseeing the CINA case to appoint a guardian as part of the
ongoing CINA proceedings,16 it instead chose to bring its request
as a separate guardianship case under AS 13.26.030.085. Because
the guardianship case was brought as a separate case with a new
case number, new filing fees, and new process Terry asserts that
he should have been entitled to one peremptory challenge.
OCS disagrees and argues that Staso only created a
bright-line rule with regard to refiled civil cases and is
therefore inapplicable to the case at hand. In support of this
argument, OCS notes that Staso discussed, but did not disavow,
pre-Staso cases in which we held that a party is not entitled to
a second peremptory disqualification of a judge, or to relief
from the waiver or timeliness requirements of Rule 42, where the
proceeding in which the disqualification sought is ancillary to
and a continuation of the underlying . . . action. 17 Looking to
these pre-Staso cases, OCS reasons that the guardianship case was
functionally another phase of the CINA proceeding, rather than a
new proceeding;18 that Judge Gleason had presided and continued to
preside over the CINA proceeding; and that Terry therefore waived
his right to peremptorily disqualify Judge Gleason by
participating in the CINA case.
Ultimately, we need not decide whether Stasos bright-
line rule applies to all separately filed cases because sound
policy requires that the guardianship and CINA cases be
considered and treated as if they were a single, unified case.
Although the relevant statutes could be read, as they apparently
were here, to permit OCS to split the issue of guardianship off
from an ongoing CINA proceeding, that reading raises the
problematic specter of forum shopping. As OCS notes, in cases
such as this, the issue of guardianship is intimately related to
and properly understood as a phase of the ongoing CINA
proceeding. This being true, reading the relevant statutes to
afford OCS the option of raising the issue of guardianship in a
separate and distinct case would effectively afford OCS the
option of trying a phase of an ongoing CINA proceeding before a
new judge. This sort of forum shopping is generally improper,
and we therefore conclude that when there exists an ongoing CINA
proceeding, any attempts to appoint a guardian whether filed
pursuant to AS 47.10.110 or AS 13.26.030.085 must be considered
and treated, in all respects, as part of the original CINA case.19
Given this conclusion, the fact that OCS raised the
issue of guardianship under AS13.26.030.085 did not give rise to
a separate and distinct guardianship case and therefore did not
reinvigorate Terrys statutory right to peremptorily disqualify
Judge Gleason. And because Terry had already knowingly
participated before Judge Gleason in multiple phases of the CINA
proceeding that concern[ed] the merits of the action, Terry
waived his right to disqualify Judge Gleason with regard to the
guardianship phase of the case.20 For these reasons, we affirm
the decision of the superior court.
B. The Superior Court Did Not Err in Finding by Clear and
Convincing Evidence that Terrys Continued Custody of
the Children Would Result in Serious Emotional or
Physical Damage to the Children.
As already noted, all three of Terrys children are
Indian children within the meaning of the Indian Child Welfare
Act. Under this act, the appointment of a guardian constitutes a
foster care placement21 and is therefore subject to the following
restriction:
No foster care placement may be ordered in
such proceeding in the absence of a
determination, supported by clear and
convincing evidence, including testimony of
qualified expert witnesses, that the
continued custody of the child by the parent
or Indian custodian is likely to result in
serious emotional or physical damage to the
child.[22]
Stated more simply, under the Indian Child Welfare Act, in order
for the superior court to appoint a guardian for Terrys children,
the court was required to find by clear and convincing evidence
that Terrys continued custody of his children was likely to
result in serious emotional or physical damage to them. Although
the superior court made this finding, Terry argues that the
finding was not supported by the record.
Terry argues that [t]he only way the trial court could
have possibly made such a finding . . . would [have] be[en] to
find that the father had molested the oldest child, Jodi. He
then goes on to insist that the superior courts finding by clear
and convincing evidence that Terry had in fact molested his
daughter was not adequately supported by evidence, and should be
overturned. According to Terry, the only evidence that he
sexually abused Jodi was Jodis own testimony, and this testimony,
he argues, was suspect, riddled with inconsistencies, not
supported by medical evidence, and sufficiently negated by his
own testimony.
First, Terry complains that the only evidence of sexual
abuse was Jodis own testimony. In his words, [t]here were
apparently no witnesses to such an incident, so the only evidence
would have been Jodis testimony. However, the lack of any
witnesses is not altogether surprising given the nature of the
allegations an abusive parent can easily take measures to avoid
third-party witnesses. For instance, in this case, Jodi
testified that the first time her father sexually abused her, he
did so on a night when both of her two sisters were staying at
their grandmothers house.
Second, Terry complains that Jodis testimony was highly
suspect. He notes that [t]he day the daughter first accused her
father, the parents had just been in court fighting over custody,
and he had been awarded fifty-one percent custody; that Jodi was
well aware that when she told OCS things, her mother was likely
to find out; and that Jodi is a girl who has had extraordinary
psychological trauma.23 However, even if true, none of these
facts in and of themselves cast doubt upon Jodis testimony.
Moreover, all of this information was before the superior court,
and that court found Jodis testimony to be persuasive.
Particularly compelling to [the superior] court was her statement
at the guardianship proceeding that she had come back to court to
testify so as to insure that her sisters were not exposed to the
same risk. The credibility of Jodis testimony was a question for
the superior court, and the superior court answered that question
decisively.24
Third, Terry argues that Jodis testimony was
inconsistent. For example, he asserts that she changed her
testimony with regard to the age at which she was subjected to
sexual abuse; whether or not she experienced bleeding after the
sexual abuse; whether the sexual abuse occurred in Mountain View
or Wasilla; and how she was held down during the sexual abuse.
However, the bulk of these inconsistencies are minor in nature
and wholly understandable given Jodis minority at the time of the
sexual abuse. Moreover, the issue of inconsistent testimony is
largely an issue of the credibility of that testimony and this
is, as already noted, an issue for the superior court.
Fourth, Terry notes that there is no medical evidence
of any sexual abuse and points to information from a physical
examination of Jodi that was consistent with her having never
engaged in sexual intercourse.25 However, the medical report
specifically stated that a normal [genital] exam does not exclude
the possibility of sexual and/or physical abuse and/or neglect.
Finally, Terry complains that his own testimony and
repeated denials of sexual abuse were sufficient to negate Jodis
testimony. However, the superior court expressly considered
Terrys testimony and found that it tended to undermine his
account. According to the superior court, Terrys testimony
reflected a disturbing pattern of Terrys inability to see his
past conduct in an accurate light. In particular, the court
noted that Terry does not accept personal responsibility with
respect to the domestic violence he perpetrated against the
mother of his children or the excessive physical punishment he
leveled against his children. As a result, the superior court
concluded that Terrys testimony that he did not sexually abuse
[Jodi] is likely to have been distorted. This line of analysis
was supported by the record.26 And, once again, the credibility
of Terrys testimony was a question properly for the superior
court.
Overall, there is ample evidence in the record to
support the superior courts finding by clear and convincing
evidence that Terry had sexually abused his daughter. Jodi
recounted the allegations of sexual abuse multiple times,
including when she was deposed and when she testified at trial,
and the core of these allegations that her father had sexually
abused her on two separate occasions remained consistent. Also,
Jodis therapist testified that Jodi had discussed the sexual
abuse during her counseling sessions and had never recanted her
allegations or expressed any confusion over the identity of the
perpetrator. Given this evidence, the superior court did not
err.
Moreover, Terry is simply incorrect when he asserts
that Jodis allegations of sexual abuse were the only evidence
upon which the superior court could have based its conclusion
that Terrys continued custody of his children was likely to
result in serious emotional or physical damage to them. Indeed,
the superior court explicitly relied upon a number of different
pieces of evidence, including evidence of Terrys physical abuse
of the childrens mother, as well as testimony by the childrens
therapist, who stated that the children were only recently
beginning to disclose in therapy the extent of the physical abuse
that their father had inflicted upon them.
For all of these reasons, we conclude that the superior
court did not err in finding that Terrys continued custody of his
children would result in serious emotional or physical damage to
them.
C. The Superior Court Did Not Err by Requiring Terry To
Participate in Sex Offender Treatment Before Being
Allowed Visitation with His Children.
In its order regarding visitation, the superior court
ruled that Terry would not be allowed any form of visitation with
his children until he demonstrates that he is successfully
participating in sex offender treatment. As Terry points out,
sex offender treatment generally requires the offender to admit
to having committed sexual abuse. As such, the superior courts
order effectively means, in Terrys words, that the father cannot
have any contact with his younger children, at least until they
turn eighteen, unless he says that he molested his oldest
daughter.
Terry argues that the superior courts requirement that
he successfully participate in sex offender treatment is
improper. He analogizes this requirement to a requirement that a
person convicted of a crime admit guilt at sentencing and points
to Alaskas consistent view . . . that the trial court should
place very little weight on the remorse issue in sentencing, if
the defendant has not admitted guilt.27 According to him, [t]he
courts ought not to make things unduly difficult for Terry S.
just because he refuses to admit to something which he insists he
did not do.
However, as OCS points out, our Nelson cases are
directly on point and preclude Terrys argument.28 In Nelson I, a
father appealed the superior courts order conditioning visitation
on the fathers successful participation in a sex offender
treatment program.29 The father had begun the sex offender
program, but refused to admit in therapy that he had sexually
abused his daughter, and the therapist cancelled the treatment.30
Although we recognized that the superior courts order would place
an innocent father in a difficult position requiring him to
admit[] to acts he did not commit . . . [or] be denied visitation
with his daughter we nonetheless concluded that the orders
severity [was] justified by the overriding need to protect [the
child] from further harm.31
Terry attempts to distinguish this case from the Nelson
cases. According to him, [t]he most important difference is that
Nelson had agreed to a stipulation that he had sexually abused
his daughter. This, however, is not a meaningful distinction.
As OCS notes in its briefing, the key fact in the Nelson cases
(as here) was the finding by clear and convincing evidence that
the father had sexually abused his child.32 Indeed, in Nelson III
we described Nelson I as holding that the trial court did not
clearly err in concluding that [the father] sexually abused [his
child] and therefore did not abuse its discretion in conditioning
supervised visitation on [the fathers] participation in sex-
offender treatment.33
Here, the superior court found by clear and convincing
evidence that Terry had sexually abused his eldest daughter. As
such, just as in Nelson, the severity of the courts order was
justified by the overriding interest in protecting the children.
D. The Superior Courts Order Conditioning Visitation on
Terrys Participation in Sex Offender Treatment Did Not
Amount to a Constructive Termination of Terrys Parental
Rights and Therefore Did Not Require Evidence Beyond a
Reasonable Doubt.
Terry argues that because he will not admit to sexually
abusing his daughter, the superior courts order conditioning
visitation with his children on his participation in sex offender
treatment effectively terminated his parental rights. As such,
he contends that the superior courts order must be reversed
because it did not meet the legal standard for terminating
parental rights under the Indian Child Welfare Act. As he notes,
under that act, parental rights may not be terminated without a
determination, supported by evidence beyond a reasonable doubt, .
. . that the continued custody of the child by the parent . . .
is likely to result in serious emotional or physical damage to
the child.34
Again, however, the Nelson cases foreclose Terrys
argument. In Nelson III, although we decline[d] to decide
whether a court could constructively terminate parental rights in
the manner asserted by [the father], we nonetheless concluded
that the trial courts restriction on visitation [was] not, in
effect, a termination of [the fathers] parental rights.35 Because
the superior courts order in the case at hand was functionally
equivalent to the order in Nelson, the same conclusion is
applicable here: the superior courts order did not effectively
terminate Terrys parental rights.
V. CONCLUSION
For the reasons detailed above, we AFFIRM the superior
courts orders.
_______________________________
1 We use pseudonyms for all family members to protect
their privacy.
2 AS 47.10.110 provides that if, during the course of a
CINA case, it appears to the court that the welfare of a minor
will be promoted by the appointment of a guardian or custodian of
the minors person, the court may make the appointment.
3 AS 18.85.100(a).
4 As Terry points out, it is not entirely clear how and
why the guardianship case was reassigned to Judge Gleason. The
reassignment order was only sent to the Attorney Generals Office,
and no other party knew about it. Indeed, the GAL actually
requested reassignment of the case to Judge Gleason over a month
after the case had already been reassigned to Judge Gleason.
5 Staso v. State, Dept of Transp., 895 P.2d 988, 990
(Alaska 1995).
6 E.A. v. State Div. of Family & Youth Servs., 46 P.3d
986, 989 (Alaska 2002).
7 Id.
8 Id.
9 Van Sickle v. McGraw, 134 P.3d 338, 341 n.10 (Alaska
2006).
10 AS 22.20.022(a) states, in relevant part:
If a party or a partys attorney in a district
court action or a superior court action,
civil or criminal, files an affidavit
alleging under oath the belief that a fair
and impartial trial cannot be obtained, the
presiding district court or superior court
judge, respectively, shall at once, and
without requiring proof, assign the action to
another judge of the appropriate court in
that district, or if there is none, the chief
justice of the supreme court shall assign a
judge for the hearing or trial of the action.
11 In re G.K., 497 P.2d 914, 915 (Alaska 1972) (quoting
Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 576 (Alaska
1969)).
12 Tunley v. Municipality of Anchorage Sch. Dist., 631
P.2d 67, 71 (Alaska 1981). In criminal cases, the scope and
procedures associated with the right are controlled by Civil Rule
42(c)s criminal law counterpart, Alaska Rule of Criminal
Procedure 25(d). Id.
13 Civil Rule 42(c) clarifies the procedure for
disqualifying a judge in the following manner:
A party wishing to exercise the right to
change of judge shall file a pleading
entitled Notice of Change of Judge. The
notice may be signed by an attorney, it shall
state the name of the judge to be changed,
and it shall neither specify grounds nor be
accompanied by an affidavit.
14 Alaska R. Civ. P. 42(c)(4)(i).
15 895 P.2d 988 (Alaska 1995).
16 AS 47.10.110 provides that if, during the course of a
CINA case, it appears to the court that the welfare of a minor
will be promoted by the appointment of a guardian or custodian of
the minors person, the court may make the appointment.
17 895 P.2d at 991 (alteration in original) (quoting
Webber v. Webber, 706 P.2d 329, 330 (Alaska App. 1985)).
18 OCS also describes the guardianship case as the
disposition phase of the CINA proceeding.
19 We briefly note that we need not reverse here based on
concerns of forum shopping because no forum shopping actually
occurred; the guardianship and CINA cases were consolidated and
properly heard by the same judge.
20 See Alaska R. Civ. P. 42(c)(4)(i).
21 25 U.S.C. 1903(1)(i) defines foster care placement as
the following:
[A]ny action removing an Indian child from
its parent or Indian custodian for temporary
placement in a foster home or institution or
the home of a guardian or conservator where
the parent or Indian custodian cannot have
the child returned upon demand, but where
parental rights have not been terminated . .
. .
22 25 U.S.C. 1912(e).
23 As Terry notes:
She was molested by an uncle. Her mother at
one point had a sex offender for a boyfriend.
A close friend of hers was raped by her own
father. Her mother died . . . . And to
compound everything, on the night after her
mother died she was forcibly raped by another
teenager. As a result of all this she has
been in [the Alaska Psychiatric Institute]
and in another psychiatric facility.
24 See Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005)
(noting that [i]t is the job of the trial court, not the
appellate court, to judge the credibility of the witnesses and to
weigh conflicting evidence) (quoting Native Alaskan Reclamation &
Pest Control, Inc. v. United Bank Alaska, 685 P.2d 1211, 1215
(Alaska 1984)).
25 The evaluation report of her physical examination
stated that her [h]ymen is estrogenized, redundant and annular in
shape, with smooth edges. No evidence of transection.
26 For instance, when asked at trial if he was the victim
in the domestic abuse that occurred, Terry responded, Yes, I am.
27 Terry cites specifically to Willard v. State, 662 P.2d
971, 979 (Alaska App. 1983).
28 Although there are three Nelson cases, only two are
relevant here: Nelson v. Jones, 781 P.2d 964 (Alaska 1989)
(Nelson I) and Nelson v. Jones, 944 P.2d 476 (Alaska 1997)
(Nelson III).
29 781 P.2d at 969.
30 Id. at 967.
31 Id. at 969.
32 944 P.2d at 478.
33 Id.
34 25 U.S.C. 1912(f).
35 944 P.2d at 480.
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