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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jude M. v. State, Dept. of Health & Social Services, Office of Children's Services (4/28/2017) sp-7168
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JUDE M., )
) Supreme Court No. S-16233
Appellant, )
) Superior Court No. 3AN-11-00121 CN
v. )
)
O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & )
No. 7168 - April 28, 2017
)
SOCIAL SERVICES, OFFICE
OF CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Appellant. Laura Fox, Assistant Attorney General,
Anchorage, and Jahna Lindemuth, Attorney General, Juneau,
for Appellee. Anita L. Alves, Assistant Public Advocate and
Richard Allen, Public Advocate, Anchorage, for Guardian Ad
Litem.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
MAASSEN, Justice.
STOWERS, Chief Justice, with whom WINFREE, Justice,
joins, concurring in part and dissenting in part.
----------------------- Page 2-----------------------
I. INTRODUCTION
A father appeals a superior court order granting long-term guardianship of
his daughter to maternal relatives in another state. The father has a history of
inappropriate sexual relationships and during four years of the child's life was
incarcerated following a federal conviction for transportation of child pornography. The
superior court ordered the guardianship based in part on expert testimony that the father
could not yet be left alone with his daughter, given the state of his progress with sex
offender treatment, and in part because his probation conditions prohibited unsupervised
contact with anyone under 18.
We conclude that the superior court had the statutory authority to establish
a guardianship under these circumstances. But the court's finding that the daughter was
likely to suffer serious emotional or physical harm if returned to her father's care was
based in part on findings that lack the required basis in the expert testimony. We
therefore remand for the superior court to consider whether the remaining findings are
sufficient to support the guardianship order.
II. FACTS AND PROCEEDINGS
A. Facts
Dana was born in July 2008 to Jude and Marya M.1
Marya has five other
children, Dana's half-brothers and -sisters. Dana is an Indian child under the Indian
2
Child Welfare Act (ICWA).
1 We use pseudonyms to protect the parties' privacy.
2 25 U.S.C. § 1903(4) (2012).
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1. Dana's placement history
Dana lived with both parents for her first nine months, but Jude then took
her away because of his concerns about Marya's heavy drinking. Soon afterward the
police began investigating Jude for possession of child pornography - explicit
photographs of his teenaged half-sister. The police contacted the Office of Children's
Services (OCS), which placed Dana with Jude's friends, the Carelawns. Jude visited
Dana several days a week until his arrest in November 2009. Dana was then returned
to her mother's custody and OCS closed its file. In December 2009 Jude pleaded guilty
to the federal offense of transporting child pornography across state lines and was
sentenced to 60 months in prison followed by five years of supervised release.
Dana lived with her mother and half-siblings for about a year and a half.
OCS opened this case in April 2011, when Marya left the children alone in an apartment.
Dana was again placed with the Carelawns until July 2013, when OCS decided she
should live with Marya's sister, Natalia Winsome, in another state. Although the
Carelawns wanted to adopt Dana, Natalia's family was a priority placement under
3
ICWA.
The superior court upheld OCS's transfer decision in February 2014 following
a contested placement hearing, and OCS moved Dana out of state in late May to live with
the Winsomes.
While living with the Winsomes, Dana was sexually abused by Natalia's
minor son Roland. When Dana told the Winsomes about the abuse in April 2015, they
immediately took her to the hospital. Roland was arrested for sexual assault and
removed from the home. At the time of the second termination trial Dana was still living
with the Winsomes, and the entire family was participating in a state program for
3 See 25 U.S.C. § 1915(b) (2012). In addition to the family relationship,
Natalia and Marya are members of the same Alaska Native tribal entity.
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----------------------- Page 4-----------------------
families suffering the effects of sexual abuse. Dana had received individual treatment
as well.
2. Jude's sexual history and treatment
Jude has a history of inappropriate sexual relationships beginning in
childhood and including sex with cousins, an ex-girlfriend of his father, a half-sister, and
(more or less contemporaneously) the half-sister's mother, his former stepmother. Jude
spent several years of his 60-month prison sentence at Devens Federal Medical Center
in Massachusetts, which provides a voluntary program for sex-offender rehabilitation.
There he was diagnosed with two paraphilic disorders: "hebephilia" because of his
strong sexual attraction to teenaged girls and "incest" because of his relationship history
and sexual fantasies.
Jude successfully completed Devens's intensive sex-offender treatment
program, and a risk assessment rated him as having a "Low-Moderate" risk of sexual
recidivism. A Relapse Prevention Plan recommended that he "should have NO contact
with any children under the age of 18 . . . unless supervised by a responsible adult who
is aware of [his] sex offense history." The Plan advised that if Jude were allowed to live
with Dana he "should not be alone with his daughter at any time nor should he enter her
bedroom" or "act as a chaperone for his daughter and her friends." In December 2013
Jude was relocated from Devens to a halfway house in Anchorage, from which he was
released in May 2014. He continued treatment locally with Dr. Allen Blair, who
discharged him in January 2015 because he had completed his treatment goals.
B. Proceedings
1. First termination trial
Dana was adjudicated a child in need of aid in December 2011. OCS
petitioned to terminate Jude's parental rights in August 2012 on the grounds that Jude
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would "not be released until 2014, and it is at best unclear if he will have resolved his
4
history of sexual behavior against underage female relatives by then."
After hearing testimony in April 2014, the superior court found five of the
six elements required for termination: (1) Dana was a child in need of aid due to
concerns about Jude's sexual history; (2) Jude's troubling conduct had not been
remedied; (3) OCS had made timely and reasonable efforts to provide family support
services; (4) active efforts had been made to reunify the family; and (5) termination was
5
in Dana's best interests. But the court could not find beyond a reasonable doubt one of
the elements required for termination: that returning Dana to Jude's care was likely to
6
result in serious emotional or physical damage to her. Without "[an] expert witness who
had performed a specific diagnostic assessment of the risk posed by [Jude]," the court
had "[a] reasonable doubt about [Jude]'s capacity to change," which precluded a finding
of likely harm. The court therefore denied termination.
2. Second termination trial
Jude and OCS could not agree on an appropriate permanency plan once
Dana moved out of state to live with the Winsomes, and the superior court scheduled a
second termination trial. At OCS's request the superior court agreed to consider the
alternative of a long-termguardianship with the Winsomes. It heard evidence in October
and November 2015.
4 OCS also requested termination of Marya's rights. She failed to appear for
trial, and the court terminated her parental rights in June 2014.
5 See AS 47.10.088(a) - (c); 25 U.S.C. § 1912(d) (2012); CINA Rule 18(c).
6 See 25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
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----------------------- Page 6-----------------------
Dr. Richard Lazur, who had been retained by OCS to assess Jude, testified
that Jude's risk of reoffense within a year was 3.2% and within five years was 5.9%.
The superior court found that both Dr. Lazur and Dr. Blair, Jude's treating therapist,
believed that Jude continued to pose "a small but significant risk" to Dana. Both experts
"recommended a detailed transition program with safeguards to protect [Dana]" and that
"any reintroduction should occur over a long period of time in a safe, therapeutically-
controlled environment."
The court again concluded that OCS had proven all but one element
required for termination; it found that the likelihood of harm from Dana's return to
Jude's care was proven by clear and convincing evidence but not beyond a reasonable
doubt. The court found that "[a]ccording to Dr. Lazur, [Jude] has made outstanding
progress toward recovery" and "the evidence [still] fails to show beyond a reasonable
doubt that [Jude]'s conduct is unlikely to change." The court therefore denied
termination for a second time.
3. Guardianship order
Having denied termination, the court turned to OCS's alternative request
that Dana be placed in a long-term guardianship with the Winsomes. The court first
determined that it was authorized to consider guardianship because Jude's parental rights
had been suspended both by Dana's status as a child in need of aid and by the terms of
Jude's probation, which prohibited unsupervised contact with Dana. The court made
three findings required to support a guardianship order: (1) that active efforts were made
and were unsuccessful; (2) that "leaving the child in the parent's custody would likely
cause 'serious emotional or physical damage' "; and (3) "that appointment of a guardian
would be in the child's best interest." The court appointed the Winsomes as Dana's
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----------------------- Page 7-----------------------
guardians until she turns 18, giving them discretion over future contact between Dana
and Jude, "guided by the therapeutic recommendations for [Dana]."
Jude appeals from this order. The guardian ad litem sides with OCS in
supporting the order.
III. STANDARDS OF REVIEW
"In child in need of aid cases, 'we review the trial court's factual findings
for clear error and its legal determinations de novo.' " 7 "We will find clear error only
when a review of the entire record leaves us 'with a definite and firm conviction that the
8
"[I]t is the function of the trial court, not of this
superior court has made a mistake.' "
9
Thus,
court, to judge witnesses' credibility and to weigh conflicting evidence."
"[c]onflicting evidence is generally not sufficient to overturn a trial court's factual
findings, and we will not reweigh evidence when the record provides clear support for
10
a trial court's ruling."
7 Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 322 P.3d 842, 849 (Alaska 2014) (quoting Chloe O. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs. , 309 P.3d 850, 855 (Alaska 2013)).
8 David S. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
270 P.3d 767, 774 (Alaska 2012) (quoting S.H. v. State, Dep't of Health &Social Servs.,
Div. of Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002)).
9 Tessa M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 182 P.3d 1110, 1114 (Alaska 2008) (quoting In re Adoption of A.F.M., 15 P.3d
258, 262 (Alaska 2001)).
10 Emma D., 322 P.3d at 849 (quoting Chloe O., 309 P.3d at 856).
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----------------------- Page 8-----------------------
"Whether a trial court's findings are consistent with the child in need of
11
aid" or other applicable statutes "is a question of law that we review de novo."
12
"Statutory interpretation is also a question of law," for which we adopt "the rule of law
13
that is most persuasive in light of precedent, reason, and policy."
"Whether the state complied with the 'active efforts' requirement of
14
[ICWA] is a mixed question of law and fact." "Whether a child would likely suffer
serious physical or emotional harm if returned to a parent's custody is a question of
15
fact."
We review for abuse of discretion the superior court's determination that
guardianship is in the child's best interests, though we review any underlying findings
16
of fact for clear error. "In appointing a guardian, the superior court 'abuses its
discretion if it considers improper factors, fails to consider statutorily mandated factors,
17
or assigns too much weight to some factors.' "
11 Tessa M., 182 P.3d at 1114 (citing Brynna B. v. State, Dep't of Health &
Soc. Servs., Div. of Family & Youth Servs. , 88 P.3d 527, 529 (Alaska 2004)).
12 Madonna v. Tamarack Air, Ltd., 298 P.3d 875, 878 (Alaska 2013) (citing
Curran v. Progressive Nw. Ins. Co., 29 P.3d 829, 831 (Alaska 2001)).
13 Tessa M., 182 P.3d at 1114 (quoting Brynna B., 88 P.3d at 529).
14 Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 175 P.3d 1263, 1267 (Alaska 2008) (citing T.F. v. State, Dep't of Health & Soc.
Servs., 26 P.3d 1089, 1092 (Alaska 2001)).
15 Chloe O., 309 P.3d at 856 (citing Pravat P. v. State, Dep't of Health &Soc.
Servs., Office of Children's Servs., 249 P.3d 264, 270 (Alaska 2011)).
16 In re M.K., 278 P.3d 876, 880-81 (Alaska 2012).
17 Id., 278 P.3d at 881 (quoting Farmer v. Farmer, 230 P.3d 689, 693 (Alaska
2010)).
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----------------------- Page 9-----------------------
IV. DISCUSSION
Jude's claims on appeal focus on the long-term guardianship order and fall
into three main categories: (A) that the order exceeded the superior court's statutory
authority, (B) that the court applied the wrong standard of proof for its finding of a
likelihood of harm, and (C) that the evidence does not support the court's findings.
A. The Superior Court Was Authorized To Establish A Guardianship
Under AS 13.26.045.
Alaska Statute 13.26.045 authorizes the superior court to "appoint a
guardian for an unmarried minor if all parental rights of custody have been terminated
or suspended by circumstances or prior court order." (Emphasis added.) Jude argues
that the court lacked authority to establish a guardianship under this statute because his
rights had not been terminated or suspended. He specifically challenges the court's
18
reliance on Dana's CINA status as having "suspended" his rights, arguing that he
19
retained "residual rights" of parenting despite OCS's physical custody ofDana. Alaska
20
Statute 13.26.045 does not define "suspended" and the parties dispute its meaning; we
21
consider the meaning of a statutory term de novo.
18 Jude does not directly challenge the superior court's reliance on his
probation conditions as a separate suspension of his parental rights. Because we agree
with the superior court that Jude's custodial rights were suspended by the CINA
adjudication, we need not address the effect of the probation conditions.
19 AS 47.10.084(c).
20 See AS 13.26.005 (definitions).
21 Doe v. State, 189 P.3d 999, 1002-03 (Alaska 2008) ("We give de novo
review to questions of law, including issues of statutory interpretation." (citing Doe v.
State, Dep't of Pub. Safety, 92 P.3d 398, 402 (Alaska 2004))).
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----------------------- Page 10-----------------------
It is true, as Jude contends, that the parent of a child in OCS custody retains
"residual rights" unless and until all parental rights are terminated; these residual rights
include "the right and responsibility of reasonable visitation, consent to adoption,
consent to marriage, consent to military enlistment, [and] consent to major medical
22 But rights of custody are not included in those residual rights.23 The
treatment."
question, therefore, is whether Jude's custodial rights were suspended while Dana was
in OCS's custody.
"When a child is committed under AS 47.10.080(c)(1) to the department,
. . . a relationship of legal custody exists" between OCS and the child, imposing on OCS
the daily custodial responsibilities that would otherwise be the parent's.24 In contrast, as
the superior court explained, "[Jude] has neither the right of physical custody nor any
day-to-day right of legal custody. He cannot take [Dana] to the park, make her a
sandwich, or tuck her in at night." To "suspend" rights means to temporarily prevent
25 Because Jude was prevented from exercising his "parental rights of
their exercise.
22 AS 47.10.084(c).
23 We do not address thecircumstancein which thetrial court returns the child
to the parent's custody in an ongoing CINA proceeding. See AS 47.10.080(c)(2).
24 AS 47.10.084(a) ("[The relationship of legal custody] imposes on [OCS]
the responsibility of physical care and control of the child, the determination of where
and with whom the child shall live, the right and duty to protect, nurture, train, and
discipline the child, [and] the duty of providing the child with food, shelter, education,
and medical care. . . .").
25 "Suspend" means " [t]o interrupt; postpone; defer" or "[t]o temporarily
keep (a person) from performing a function . . . or exercising a right or privilege."
Suspend, BLACK 'S LAW DICTIONARY (10th ed. 2014).
-10- 7168
----------------------- Page 11-----------------------
custody" once OCS took custody of Dana, his parental "rights of custody" were
suspended as that term is used in AS 13.26.045. 26
Jude argues that "[t]he logical extension" of this holding is that any child
custody order granting "one parent sole legal and physical custody" suspends the non-
custodial parent's rights. But the analogy to private child custody disputes is inapt, as
27
demonstrated by the Arizona case on which Jude relies, Morales v. Glenn . The parents
in Morales had divorced, and the father was awarded sole custody of two minor
children.28 After the father died the superior court ordered the children returned to the
mother, but a probate court simultaneously entertained a petition for guardianship
brought by the paternal grandparents, who argued that the mother's custodial rights had
been terminated by the award of sole custody to the father.29 The Arizona Supreme
30 It noted
Court held that the grandparents' guardianship petition should be dismissed.
that the original custody decree "was silent as to the mother's fitness to have custody of
the children," that she had been granted reasonable rights of visitation, and that she
"regained all rights of custody . . . at the time of the death of the father . . . and actual
custody by reason of the order of the [superior] court."31 The court expressly rejected
26 See A.H. v. State, 779 P.2d 1229, 1232 (Alaska 1989) ("[T]he designation
of the minors as children in need of aid acted to cut off the father's sole legal
custody . . . .").
27 560 P.2d 1234 (Ariz. 1977).
28 Id. at 1236.
29 Id.
30 Id. at 1238.
31 Id. at 1236-37.
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the idea that, absent express findings on the issue, an award of custody to one parent
created a presumption that the other parent was unfit to have custody. 32
The opposite is true in the case of a child in need of aid. OCS has custody
only because of a judicial determination that the parent has committed conduct or created
conditions that put the child's welfare at risk.33
Jude also finds support for his argument in a regulation, 7 Alaska
Administrative Code (AAC) 56.370(b), which states in part that an agency may not place
a child in a guardianship without having on hand, among other things, "evidence that . . .
parental rights have been terminated or suspended by the court." Jude argues that every
case to which subsection .370(b) applies involves a child that "has been, like Dana,
adjudicated to be a child in need of aid," so the regulatory requirement is superfluous if
a CINA adjudication necessarily suspends parental rights. But as OCS points out, the
provision applies to cases other than CINA cases and to agencies other than OCS,34 and
it simply identifies the authorization paperwork necessary for any such agency to
proceed with a guardianship. The regulation does not purport to supplement the
guardianship statutes by requiring an additional finding of termination or suspension.35
32 Id. (citing Ward v. Ward , 353 P.2d 895, 901 (Ariz. 1960)).
33 See AS 47.10.011 (defining children in need of aid).
34 Under 7 AAC 56.010(a) (2015), the provisions apply to licensed "child
placement agencies," including, for example, programs for runaway minors operated by
municipalities or corporations. See AS 47.10.310.
35 We also reject Jude's argument that the phrase "adoption or legal
guardianship" in AS 47.10.080(l)(2)(B), addressing permanency plans, means that the
two options are "aligned" such that OCS can seek neither one without first petitioning
for termination. Such a reading is not required by the statutory language, and it directly
conflicts with the express direction of AS 13.26.045 that the appointment of a guardian
(continued...)
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In sum, because Jude's custodial rights had been suspended, the superior
court did not err in concluding that it had the authority under AS 13.26.045 to appoint
36
a long-term guardian for Dana.
B. The Guardianship Was Not A De Facto Termination That Triggered
ICWA's Requirement That The Likelihood Of Harm Be Proven
Beyond A Reasonable Doubt.
Jude argues that even if the guardianship was statutorily authorized, it was
a de facto termination of parental rights for which ICWA requires a higher standard of
proof. ICWA prohibits termination absent proof "beyond a reasonable doubt, including
testimony of qualified expert witnesses, that the continued custody of the child by the
parent . . . is likely to result in serious emotional or physical damage to the child."37
Here, the superior court found a likelihood of harm only by the lesser standard of clear
and convincing evidence, which is why it refused to terminate Jude's parental rights and
ordered a long-term guardianship instead.
ICWA does not separately address guardianships but it does define four
types of "child custody proceeding[s]": (1) foster care placement, (2) termination,
35(...continued)
may follow either termination or suspension of a parent's custodial rights.
36
The State argues that the guardianship order in this case was authorized not
only by AS 13.26.045 but also by AS 47.10.110, which addresses the appointment of a
guardian "in thecourse of a [CINA] proceeding." Wediscussed therelationship between
these two laws in Terry S. v. State, Department of Health & Social Services, Office of
Children's Services, 168 P.3d 489, 495 (Alaska 2007). More recently the legislature
enacted AS 47.10.111, which addresses petitions for adoption or legal guardianship of
children in need of aid and will govern the course of such proceedings in the future.
Ch. 6, § 9, SSSLA 2016.
37 25 U.S.C. § 1912(f).
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38
(3) preadoptive placement, and (4) adoptive placement. Included in the definition of
"foster care placement" is "any action removing an Indian child from its parent . . . for
temporary placement in . . . the home of a guardian . . . where the parent . . . cannot have
the child returned upon demand, but where parental rights have not been terminated." 39
The Winsomes' guardianship of Dana meets this definition: Dana is being kept from her
father's home;40 she will be placed temporarily41 in the home of a guardian; Jude cannot
have her returned upon demand; and Jude's parental rights have not been terminated.42
In support of his argument that the guardianship effectively terminated his
43 In that case the State
parental rights, Jude points to our decision in D.H. v. State.
allowed three children in need of aid to move to Alabama with their foster family.44 We
held that "[a] termination of visitation rights exists not only where the state formally
38 25 U.S.C. § 1903(1).
39 25 U.S.C. § 1903(1)(i).
40 See CINA Rule 10.1(b) (requiring compliance with ICWA where a court
"is authorizing an Indian child's removal . . . or continuing a previous order authorizing
removal" (emphasis added)).
41 Although the guardianship is long-term, it is not permanent; it can be
terminated by court order. See AS 13.26.085.
42 See Terry S. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 168 P.3d 489, 495 (Alaska 2007) (observing that under ICWA "the appointment
of a guardian constitutes a 'foster care placement' "). This interpretation is also
consistent with the commentary to the newICWA regulations. Indian Child Welfare Act
Proceedings, 81 Fed. Reg. 38,778, 38,798(June14, 2016) ("Where a guardianship meets
[the foster care placement] criteria, it is subject to applicable ICWA requirements for
child-custody proceedings.").
43 723 P.2d 1274 (Alaska 1986).
44 Id. at 1275.
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----------------------- Page 15-----------------------
obtains a termination order but also where the state's decision as a practical matter
45
precludes the parent from exercising his or her right of reasonable visitation." Because
the father was "unemployed and virtually penniless" and "lack[ed] the funds to call
regularly," we held that the out-of-state foster care arrangement "constitute[d] a de facto
46 Jude argues that if the foster care
termination of [the father's] visitation rights."
placement in D.H. qualified as a de facto termination, then "surely [the] more permanent
and formal break of parental rights . . . in this case" by the guardianship order must do
so too.
But the de facto termination in D.H. was of only one parental right, albeit
an important one: the right of reasonable visitation. Whether the out-of-state placement
constituted a de facto termination of all the father's parental rights was not at issue. In
another case, Nelson v. Jones, we declined to find a de facto termination of all parental
rights even where the superior court denied a father any visitation until he admitted that
47 We concluded that "the trial court's
he had sexually abused one of his children.
restriction on visitation [was] not, in effect, a termination of [the father]'s parental
rights."48
Jude also asserts that the guardianship order "ends OCS's custody over
Dana" and "changes the legal standard" by which he can regain custody, because under
AS 13.26.085,49 in order to end the guardianship, he must now carry the burden of
45 Id. at 1277.
46
Id. at 1276-77.
47
944 P.2d 476, 479-80 (Alaska 1997).
48
Id. at 480.
49
AS 13.26.085 was renumbered in 2016 as AS 13.26.186; its text remains
(continued...)
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proving "that removing Dana from the Winsomes' care would be in Dana's best
interests." But the fact that the guardianship modified Jude's legal rights is not enough
to make it a "termination" under federal law. ICWA recognizes that any "foster care
placement" modifies parental rights, in that "the parent . . . cannot have the child returned
50 But as OCS points out, if Jude petitions the court for the guardians'
upon demand."
removal, the outcome could be "the return of Dana to Jude - something that would not
be possible if Jude's parental rights were terminated and Dana were adopted."51
Because guardianship is a foster care placement under ICWA, the superior
court was required to support the guardianship order "by clear and convincing evidence
that [the father]'s continued custody of his children was likely to result in serious
emotional or physical damage to them."52 The court did not err by applying this standard
when it ordered the guardianship for Dana.
49(...continued)
the same.
50 25 U.S.C. § 1903(1)(i); see also Dep't of Human Servs. v. J.M. , 338 P.3d
191, 202 (Or. App. 2014) (holding that a change in a child's permanency plan did not
qualify as a foster care placement under ICWA because it "did not involve the
'significant shift in legal rights' that occurs when a guardianship is established").
51 See AS 25.23.130 (providing that an adoption decree will "relieve the
natural parents of the adopted person of all parental rights and responsibilities, and . . .
terminate all legal relationships between the adopted person and the natural parents . . .
so that the adopted person thereafter is a stranger to the former relatives for all
purposes"); In re K.L.J., 813 P.2d 276, 279 n.2 (Alaska 1991) ("The effect of an
adoption is to permanently terminate the legal relationship of parent and child, except
when the natural parent is the spouse of the adopting parent." (quoting Delgado v.
Fawcett, 515 P.2d 710, 711 (Alaska 1973))).
52 Terry S. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
168 P.3d 489, 496 (Alaska 2007); 25 U.S.C. § 1912(e) (2012).
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C. The Superior Court Did Not Err In Its Findings Of Active Efforts, But
Its Findings As To Whether Those Efforts Succeeded And Whether
Dana Faces Harm If Returned To Jude's Custody Lack The Required
Expert Support.
The superior court was required to make three factual findings to support
the guardianship: (1) by clear and convincing evidence that "active efforts have been
made to provide remedial services and rehabilitative programs designed to prevent the
53
breakup of the Indian family and that these efforts have proved unsuccessful";
(2) by
clear and convincing evidence, supported by expert testimony, that "custody of the child
by the parent or Indian custodian is likely to result in serious emotional or physical
54
damage to the child"; and (3) by a preponderance of the evidence that the appointment
55
of a guardian is in the child's best interests. Jude argues that the court erred both
because the evidence does not show that ICWA's requirement of "active efforts" was
satisfied and because the court's "substantial harm" and "best interests" findings are not
supported by the record. We agree in part.
53 25 U.S.C. § 1912(d); cf. CINA Rule 81(c)(2)(B) (establishing a clear and
convincing standard for active efforts in termination proceedings).
54 25 U.S.C. § 1912(e).
55 In support of this third requirement the superior court cited C.W. v. State,
23 P.3d 52, 57 (Alaska 2001), which relied on the CINA statutes' guardianship
provision, AS 47.10.110. A best interests finding is also required by AS 13.26.147(b)
(formerly AS 13.26.060(b)). We note that AS 13.26.147(b) requires other findings as
well, including that venue is proper, the person seeking appointment as guardian is
qualified to act as one, and the required notices were given. Jude does not allege any
error related to these findings.
-17- 7168
----------------------- Page 18-----------------------
1. The superior court did not err in finding active efforts, but its
finding that they were unsuccessful requires reconsideration on
remand.
Under ICWA, "[a]ny party seeking to effect a foster care placement of, or
termination of parental rights to, 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
56 57
unsuccessful."
"The determination of active efforts is done on a case-by-case basis."
"Although 'no pat formula exists for distinguishing between active and passive efforts,'
58
distinctions do exist." "[A]ctive efforts require taking a parent through the steps of a
plan and helping the parent develop the resources to succeed; drawing up a case plan and
59
leaving the client to satisfy it are merely passive efforts." "Whether OCS made active
efforts to provide remedial and rehabilitative services designed to prevent the breakup
60
of the Indian family is a mixed question of fact and law."
Jude argues onappeal that (a) thesuperior court should not have considered
efforts provided by entities other than OCS; (b) considering only OCS's efforts, there
56 25 U.S.C. § 1912(d).
57 N.A. v. State, DFYS, 19 P.3d 597, 603 (Alaska 2001).
58 Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
212 P.3d 756, 763 (Alaska 2009) (quoting A.A. v. State, Dep't of Family & Youth Servs.,
982 P.2d 256, 261 (Alaska 1999)).
59 Id. (citing A.A. , 982 P.2d at 261).
60 Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 309 P.3d 850, 856 (Alaska 2013) (citing Pravat P. v. State, Dep't of Health &
Soc. Servs., 249 P.3d 264, 270 (Alaska 2011)).
-18- 7168
----------------------- Page 19-----------------------
was insufficient evidence that active efforts were made; and (c) active efforts, if made,
were successful in rehabilitating him.
a. The superior court did not err by considering efforts
made by entities other than OCS.
The superior court's active efforts finding relied in part on sex offender
treatment provided by the federal treatment center in Devens. According to Jude,
however, ICWA requires that OCS make all qualifying efforts itself; otherwise, he
argues, OCS will be "incentiviz[ed] . . . to act passively" while letting others carry the
burden of rehabilitation, "which runs counter to ICWA's text and purpose." Because
Jude's argument asks whether the superior court's findings complied with ICWA, we
consider it de novo. 61
ICWA requires the party seeking a foster care placement to satisfy the court
62
that "active efforts have been made"; it does not say who must make the efforts. We
have approved superior courts' consideration of efforts made by outside entities such as
63 Wehave
theAlaskaDepartment of Corrections, parole officers, and therapeutic courts.
also noted that "the practical circumstances 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
61 Tessa M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 182 P.3d 1110, 1114 (Alaska 2008) ("Whether a trial court's findings are
consistent with the child in need of aid statutes is a question of law that we review de
novo.").
62 25 U.S.C. § 1912(d).
63 See, e.g., Claudio P. v. State, Dep't of Health and Soc. Servs., Office of
Children's Servs., 309 P.3d 860, 865 (Alaska 2013) (Department of Corrections efforts);
Jon S., 212 P.3d at 765 (parole officer efforts); Denny M. v. State, Dep't of Health &Soc.
Servs., Office of Children's Servs., 365 P.3d 345, 350 (Alaska 2016) (therapeutic courts).
-19- 7168
----------------------- Page 20-----------------------
remedial efforts are possible." 64 In A.M. v. State , for example, we upheld the superior
court's active efforts finding in part because of services provided by the Department of
Corrections, concluding that "[the father]'s enrollment in the DOC programs necessarily
65
reduced [OCS]'s role in providing active remedial efforts."
Although A.M. and other past cases have considered efforts made by
various entities of the State of Alaska,66 the rationale extends to services provided by
others that OCS should not be required to duplicate. It is unrealistic to expect OCS to
provide rehabilitative sex offender treatment to a federal prisoner, housed out of state,
while that prisoner is already engaged in a federal program of intensive sex offender
therapy.67 Considering Jude's treatment at Devens in the court's active efforts analysis
was not error.
64 A.A. , 982 P.2d at 261; see also Jon S. , 212 P.3d at 763 n.26 ("Although
incarceration does not absolve the state's active efforts duty, the court may consider the
impact of incarceration on the possibility of active remedial efforts.").
65 945 P.2d 296, 306 (Alaska 1997).
66 Jon S., 212 P.3d at 763-64 ("In evaluating whether the state has met its
active efforts burden, we look 'to the state's involvement in its entirety.' " (quoting
Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d
1263, 1268-69 (Alaska 2008))).
67 See A.M., 945 P.2d at 306 ("Active intrusion by [OCS] into DOC's
therapeutic programs would have been inappropriate and unreasonable, if not
impermissible as a matter of law and impossible as a matter of practical reality."). Other
courts agree with our recognition of the practical difficulties involved in providing
services to a parent incarcerated in another state. Loren R. v. Ariz. Dep't of Econ. Sec.,
No. 1 CA-JV 12-0158, 2013 WL 119664, at *1 (Ariz. App. Jan. 10, 2013) (citing A.A. ,
982 P.2d at 261, among others); In re Cari B., 763 N.E.2d 917, 924 (Ill. App. 2002)
(citing A.M. , 945 P.2d at 305-06, among others).
-20- 7168
----------------------- Page 21-----------------------
b. The superior court did not err by finding that active
efforts were made.
We review in their entirety the efforts made to prevent the breakup of
Jude's family, focusing first on the period of Jude's incarceration and then on the period
68
following his release.
Although Jude asserts that "the record does not support the
court's finding regarding active efforts," his argument focuses not on specific factual
errors but on whether the efforts satisfy the ICWA standard. This presents a question of
69
law.
We conclude that OCS satisfied the active efforts requirement.
i. Jude's incarceration
Jude was arrested in late 2009 and sentenced in August 2010. OCS took
custody of Dana in April 2011 and still had custody of her when Jude was released from
the Anchorage halfway house in May 2014. The evidence supports the superior court's
finding that active efforts were made during this time.
As noted above, Jude received intensive sex offender rehabilitation
treatment while at Devens, and he also participated in parenting and anger management
classes. He was able to send Dana gifts and letters and had regular telephone contact
with her while she lived with the Carelawns and the Winsomes. OCS apparently had no
role in facilitating these contacts, though it "provided [Mr. Carelawn] guidance" in
initiating the telephone calls and at one point gave the Carelawns advice as to whether
they should continue. Still, the superior court "assign[ed] significant weight to the fact
that this telephone contact was consistent and continuing." While Jude had no in-person
visitation with Dana while at Devens, "[w]e have previously found that telephonic visits
68 Jon S. , 212 P.3d at 763-64 (quoting Maisy W. , 175 P.3d at 1268-69).
69 Tessa M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 182 P.3d 1110, 1114 (Alaska 2008).
-21- 7168
----------------------- Page 22-----------------------
70
with an incarcerated parent satisfied the active efforts requirement." And we are
reluctant to say that "active efforts" requires sending a child across the country to visit
an incarcerated parent.
Jude emphasizes the minimal efforts his OCS caseworkers made to contact
him while he was in prison, but the evidence supports a conclusion that this was due at
71 The scope of the active
least in part to the logistical challenges of his incarceration.
efforts requirement was necessarily narrowed by these "practical realit[ies]."72 OCS's
involvement during this time was minimal but not dissimilar to what we have found
adequate in the past. In A.M. we upheld an active efforts finding where the father
received sex offender treatment in a state prison and the child protection agency
"maintained contact with [the father] while he was in treatment, generally encouraged
73 In
his treatment efforts, and assisted him in arranging visitation with his children."
Dashiell R. v State, we upheld an active efforts finding where the father received classes
and therapy while incarcerated, "OCS staff communicated with [the father] during his
incarceration," and "OCS arranged for written exchanges and telephone visits between
74
[the father] and the children." Like the parents in A.M. and Dashiell R., Jude received
treatment while incarcerated and had regular contact with his child by telephone and
70 David S. v. State, Dep't of Health &Soc. Servs. , 270 P.3d 767, 778 (Alaska
2012) (citing Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 222 P.3d 841, 844, 850 (Alaska 2009)).
71 These included the facility's anti-virus software, which interfered with
email communication, and time limits on phone calls. Jude admitted that "[t]he phone
system in prison is very hard to deal with."
72 A.M. , 945 P.2d at 306.
73 Id.
74 222 P.3d at 850.
-22- 7168
----------------------- Page 23-----------------------
letter; unlike in those cases, OCS in this case had little involvement in these efforts but
nonetheless was not required to duplicate them. We conclude that the superior court did
not err when it included these facts in the necessary active efforts.
ii. After Jude's release
In the few months between Jude's release in early 2014 and Dana's May
2014 move out of state, OCS worked on Jude's case plan, referred him to parenting
classes, and helped him to continue sex offender treatment. He had supervised contact
with Dana during family therapy sessions and at OCS.
After Dana's move, OCScaseworkerEryneHughes kept in touch with Jude
by email and had at least three meetings with him between November 2014 and the
second termination trial in late 2015. OCS set up a risk assessment for Jude with Dr.
Lazur to determine whether he could safely gain his daughter's custody.
At the time of the second termination trial Jude was having telephone
contact with Dana every Sunday, and OCS was communicating with Jude and the
Winsomes about continuing these contacts. OCS had not paid for in-person visitation,
but Dana's therapists were recommending against it at that time. One of the therapists,
Lisa Merz, testified that she needed to work with Jude before signing off on in-person
visitation, but Jude's refusal to schedule a phone call or visit Merz hindered progress.
When Jude failed to schedule the call during Merz's business hours, OCS caseworker
Hughes emailed him in an attempt to ease tensions and "let[] him know that he really
needs to do what [Dana's] clinician is asking of him." By the time of the second
termination trial Jude still had not scheduled the telephone call, though he had left Merz
a voicemail. He told Hughes that he could not afford to miss work or travel out of state;
Hughes, on the other hand, testified that he could afford it but had told her the trip would
be a waste of time without a guarantee of seeing his daughter. The superior court
credited Hughes'stestimonyonthisissuebecause"evasiveness and somedefensiveness"
-23- 7168
----------------------- Page 24-----------------------
were a "fairly recurrent aspect of [Jude's] testimony." Jude does not directly challenge
this finding of fact.
We have held consistently that "[t]he active efforts requirement does not
75 While OCS's efforts here may have "fall[en] short of
require perfection."
exemplary,"76 we conclude that the superior court did not err in finding that the "active
efforts" requirement was satisfied.
c. The superior court's finding that active efforts were
unsuccessful requires reconsideration on remand.
The superior court found that although Jude has "complied with all of the
[OCS] plan requirements," it could not "declare [Jude]'s recovery a success at this time."
Jude argues that this is clearly erroneous; he contends that if active efforts were made
they succeeded in rehabilitating him, allowing for the reunification of his family.
ICWA does not define "success" in the active efforts context. Jude argues
in effect that efforts succeed when the parent completes each element of a case plan "to
satisfaction." But completion alone cannot define success. We have held that
"[c]ompliance with treatment plans does not guarantee that parental rights will not be
terminated because it cannot guarantee that adequate parenting skills will be acquired
from the treatment regimen."77 In V.S.B. we upheld termination of a mother's parental
75 Philip J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. ,
314 P.3d 518, 530 (Alaska 2013) (quoting Pravat P. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs. , 249 P.3d 264, 272 (Alaska 2011)).
76 Thomas H. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 184 P.3d 9, 16 (Alaska 2008); see also Philip J., 314 P.3d at 530 ("[T]he fact that
OCS could have done more does not undermine the other active efforts that OCS
made.").
77 V.S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
(continued...)
-24- 7168
----------------------- Page 25-----------------------
rights even where she was able to "reduce the risk of an episode of Bipolar Disorder
down to one mild episode in a ten-year span" and "[she] ha[d] done all that ha[d] been
asked of her and there [was] nothing in the record to suggest that [she was] being
78 Although OCS had helped the mother
insincere in her attempts at rehabilitation."
complete parenting classes and mental health treatment, we upheld the superior court's
determination that "[her] parenting skills ha[d] only marginally improved and [were] not
sufficient to make her an adequate parent."79
As in non-ICWA cases, the appropriate question here "is whether [the
parent] ha[s] remedied the problems that placed [his] children at risk and gained the
necessary skills so that the children could be safely returned to [the parent's] care."80
The problems need to be not just addressed but "remedied."
And a failure to remedy, when combined with a continuing likelihood of
harm to the child, may demonstrate that active efforts did not succeed.81 The superior
77(...continued)
Servs., 45 P.3d 1198, 1208 (Alaska 2002) (citing In re T.W.R. , 887 P.2d 941, 945
(Alaska 1994)); see also Barbara P. v. State, Dep't of Health & Soc. Servs., 234 P.3d
1245, 1260 (Alaska 2010) ("[C]ompletion of a case plan [in a non-ICWA case] does not
guarantee a finding that [a parent] has remedied [his] conduct.").
78 V.S.B., 45 P.3d at 1207.
79 Id.
80 Barbara P., 234 P.3d at 1260; In re J.S., 321 P.3d 103, 110 (Mont. 2014)
(observing that the goal of active efforts in an ICWA case is "to avoid the breakup of
Indian families whenever possible by providing services designated to remedy problems
which might lead to severance of the parent-child relationship" (quoting In re G.S., 59
P.3d 1063, 1072 (Mont. 2002))).
81 Thomas H. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 184 P.3d 9, 17 (Alaska 2008) (holding that the trial court's "analysis [regarding
(continued...)
-25- 7168
----------------------- Page 26-----------------------
court found this combination of factors here. However, as discussed in the section that
follows, the superior court's finding of a likelihood of harm rests in part on
considerations that lack support in the expert testimony. Because the court must
reconsider on remand whether the evidence supports a likelihood of harm, it must also
reconsider whether the active efforts in this case were unsuccessful.
2. One aspect of the superior court's finding that Dana would
likely suffer serious emotional or physical damage in Jude's
custody lacks support in the expert testimony.
BeforeappointingaguardianunderICWAthesuperior court"was required
to find by clear and convincing evidence that [Jude]'s continued custody of [Dana] was
82
likely to result in serious emotional or physical damage to [her]."
Whether returning
83
a child to the parent would likely cause harm is a question of fact, but whether the
84
findings comport with statutory requirements is a question of law. The clear and
convincing evidence of harm necessary to support a guardianship must include
81(...continued)
harm], coupled with [its] holding . . . that [the father] failed to remedy his conduct within
a reasonable time, disposes of th[e] argument [that active efforts were successful]"); see
also Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs.,
102 P.3d 932, 936-37 (Alaska 2004) (affirming a finding of likelihood of harm in part
by relying on the parent's failure to remedy).
82 See Terry S. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 168 P.3d 489, 496 (Alaska 2007); 25 U.S.C. § 1912(e).
83 Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 249 P.3d 264, 270 (Alaska 2011).
84 C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1217 (Alaska
2001).
-26- 7168
----------------------- Page 27-----------------------
85
"testimony of qualified expert witnesses." But ICWA "does not clarify the scope of the
expert testimony required, nor does it require that the expert testimony provide the sole
86 We have interpreted ICWA to require that "[t]he
basis for the court's conclusion."
expert testimony constitute[] some of the evidence upon which the judge bases this
finding. But it does not need to be the sole basis for that finding; it simply must support
it."87
As an alternative to Jude's argument that thefinding of harmrequired proof
beyond a reasonable doubt (addressed above in Section IV.B), Jude contends that the
finding was not supported by clear and convincing evidence. The superior court based
its finding of harm on three "considerations": (1) that Jude "still poses a significant risk
of re-offense"; (2) that "there are good reasons to be cautious" about reunifying Jude
with Dana given his extensive sexual history with relatives and teens and "the fact that
[Dana] will be a teenager in six years"; and (3) Jude's "inability to meet [Dana's]
caregiving needs."
Jude first asserts that the superior court's decision that he "poses a
significant risk of re-offense" is in stark contrast with the expert testimony, pointing to
Dr. Lazur's testimony that he is a "poster boy for sex offender treatment" because of his
desire to make positive changes in his life.88 Dr. Lazur concluded that the risk Jude will
85 25 U.S.C. § 1912(e). As noted above, the term "foster care placement" in
the act is defined to include guardianships. See 25 U.S.C. § 1903(1)(i).
86 Diana P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 355 P.3d 541, 547 (Alaska 2015) (first citing 25 U.S.C. § 1912; then citing E.A.
v. State, Div. of Family & Youth Servs., 46 P.3d 986, 992 (Alaska 2002)).
87 Marcia V. v. State, 201 P.3d 496, 508 (Alaska 2009).
88 The superior court recognized Dr. Lazur as an expert in the psychological
(continued...)
-27- 7168
----------------------- Page 28-----------------------
sexually reoffend within five years was approximately 6%; he called this a "moderate
89
risk." Dr. Blair placed Jude in the "low moderate" risk category, at 2.8%.
The superior
court, however, found Jude'srisk ofreoffenseto be"significant"underthecircumstances.
Jude takes issue with the term "significant," analogizing that "[i]f a weather
forecast calls for a 6 percent chance of rain, one would never say there is a 'significant'
chan[c]e of rain." OCS responds that "[a] small risk of rain may not warrant an umbrella,
but a small risk that a child will be sexually abused may be cause for serious concern."
We agree that the significance of the risk depends in part on the seriousness of the harm
to be avoided. And deciding whether a particular risk is significant in the context of a
child in need of aid case is for the court, even if that risk has been quantified by an expert
90 We cannot say that the superior court clearly erred when it found that Jude
witness.
posed a "significant" risk of sexual reoffense.
We are more concerned with the court's second consideration: that because
of Jude's sexual history, the risk of sexual offense encompasses Dana as a possible victim.
Dr. Lazur testified that the risk Jude would sexually offend with his daughter was
essentially nonexistent. He testified that "there's no evidence, either from the test data,
the risk assessment, my judgment of looking at him and seeing where he is and seeing
88(...continued)
evaluation and treatment of sex offenders and risk assessments of sex offenders.
89 The superior court recognized Dr. Blair as an expert in the field of sex
offender treatment.
90 Diana P., 355 P.3d at 546-47 ("The findings of a likelihood of serious
emotional or physical damage are findings that must be made by the trial judge, not the
expert witness." (quoting Marcia V., 201 P.3d at 508)). Though an expert witness such
as Dr. Blair or Dr. Lazur is in the best position to estimate the risk of sexual reoffense,
it is up to the superior court to determine whether that risk is significant in the context
of a CINA case.
-28- 7168
----------------------- Page 29-----------------------
what he's doing, that he poses a danger" to Dana. His opinion was based on Jude's age,
"awareness[,] and ability to control his drives" and also on Jude's "very different"
relationships with his former sexual partners - whom he viewed as "people of
convenience" there to "serve his needs" - and with his daughter, whom he was
motivated to care for as a parent. Dr. Blair deferred on this issue to Dr. Lazur. In short,
the superior court's conclusion that Dana was at risk of sexual abuse by her father finds
no support in the expert testimony given at trial.
The court's remaining concern, however - Jude's "inability to meet
[Dana's] caregiving needs" - is well supported by the evidence. The court found that
Jude "is simply not the kind of caregiver [Dana] needs right now." The court referred to
the testimony of Dana's therapist, Merz, who testified that Jude "has displayed a pattern
of failing to understand [Dana's] past traumas and does not understand the child's fears
91 Merz identified these traumas, fears, and anxieties as including Dana's
and anxieties."
sexual abuse by her cousin, a "sense of abandonment and loss" due to early childhood
neglect and Jude's incarceration, and abusive experiences when she lived with the
Carelawns, as well as a general "fear of the unknown." She testified that Dana "is very
vulnerable to potential abusive situations in the future." She testified that Dana needs a
"secure attachment" to her caregiver, to include "a predictable environment,"
responsiveness to Dana's "emotional needs," and the practical ability to meet the daily
routines of child care. Merz testified that Dana had "formed a secure attachment with"
the Winsomes and that Natalia Winsome was particularly "attuned to [Dana's] emotional
needs" and an essential part of the child's ongoing therapy.
Thecourtfoundthat Jude, in contrast,"is neither legally nor psychologically
capable of parenting [Dana]." It found that despite Jude's positive response to treatment,
91 Merz was qualified as an expert in mental health counseling.
-29- 7168
----------------------- Page 30-----------------------
he continued to "put[] his own needs and desires first." The court noted the "narcissistic
personality traits" observed by both Dr. Blair and Dr. Lazur and that Jude continued to
exhibit those traits at trial. Merz's testimony supported these findings; although she had
had no direct contact with Jude, she reported that his telephone calls gave Dana "a big
increase in anxiety and uncertainty" in part because of Jude's failure to recognize that his
promises about their future together aggravated Dana's "fear of the unknown."
The superior court also discussed the emotional impact on Dana of any
transition from the "permanency and stability" of the Winsomes' home to the uncertainty
of reunification with Jude. It noted that Jude was currently barred by law "from having
unsupervised [contact] with anyone under the age of eighteen"; that both Dr. Lazur and
Dr. Blair testified about the necessity of a slow reintroduction, with "a detailed transition
92 ; and that because of this, Dana would not be able to live with Jude
plan with safeguards"
even after moving back to Alaska, meaning that "it will be some time before she and
[Jude] can form a meaningful parent-child relationship." The court concluded that "any
move from [the Winsomes' home state] to Alaska is likely to be disruptive to [Dana]."
In granting the guardianship, therefore, the court decided that Dana should
remain with the Winsomes until Jude's "likelihood of relapse decreases," noting Dr.
92 Dr. Lazur's and Dr. Blair's opinions about the necessity of a transition
period were not based on a sexual risk that Jude posed to Dana. Dr. Lazur's discussion
of the transition period was based on the general need for a parent and child, long
separated, to get to know each other, and Jude's need for time to figure out how to be a
parent. Dr. Lazur was asked, "[W]hat I'mgetting is that the primary basis for those ideas
and recommendations for the transition is not the risk of reoffense, but related to re-
familiarization in the parenting . . . issues that need to be worked out," and he answered,
"Exactly." As for Dr. Blair, his testimony about a necessary transition period was based
in part on what he understood to be the conditions of Jude's probation and in part on
what he understood to be OCS's typical practice in reunifying families. He repeatedly
deferred to Dr. Lazur as to whether Jude posed a risk of sexual reoffense to Dana.
-30- 7168
----------------------- Page 31-----------------------
Lazur's testimony that Jude's statistical risk of reoffending will drop by 50% five years
after his release from prison. The court noted that Jude "may be ready to act as [Dana's]
father if he continues to progress." But it also noted its continuing concern with how
Jude's narcissistic personality traits might impact his "ability to place [Dana's] needs
before his own" and his minimalization of some of his past transgressive behavior.
In sum, we see no clear error in the superior court's conclusions (1) that
Jude's risk of sexual reoffense is "significant"; (2) that Jude is currently unable to meet
Dana's needs as her caregiver; and (3) that moving Dana from her secure environment
with the Winsomes to a transitional setting with her father in Alaska would be disruptive
and emotionally damaging. But given the expert testimony requirement of ICWA, it was
error to rely on Jude's sexual history and risk of sexual reoffense as posing a particular
93 The court
danger to Dana; this conclusion is not supported by the expert testimony.
relied on all these factors in combination to find the likelihood of harm. Because the
94 we remand for the superior court to consider
question of likely harm is one of fact,
whether, consistent with our discussion above, there remains "clear and convincing
evidence, including testimony of qualified expert witnesses," that returning Dana to
Jude's custody will cause her serious emotional or physical damage.
3. The superior court did not abuse its discretion by finding that
guardianship was in Dana's best interests.
To support a guardianship order under AS 13.26.060(b) a court must find
that "the welfare and best interests of the minor will be served by the requested
93 See 25 U.S.C. § 1912(e) (requiring"adetermination, supported byclear and
convincing evidence, including testimony of qualified expert witnesses, that the
continued custody of the child by the parent . . . is likely to result in serious emotional
or physical damage to the child").
94 Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 249 P.3d 264, 270 (Alaska 2011).
-31- 7168
----------------------- Page 32-----------------------
appointment." Jude challenges the court's best interests finding in this case first because
of the risk of sexual abuse posed by Natalia's son Roland. The superior court found that
"in spite of the risk that [Roland] will likely return to the [Winsome] house, . . .
guardianship with the [Winsomes] would adequately protect [Dana] from additional
physical or psychological harm."
The record supports this finding. A number of witnesses testified that the
Winsomes responded immediately and appropriately to Dana's report of abuse. The
entire family participated in a program called RSafe, which included individual treatment
for both Roland and Dana. Witnesses confirmed that because the reparation goal of
RSafe "is always victim-centered," any decision about whether Roland returns to the
Winsome home will be based on the therapeutic recommendations for Dana.
The court also heard evidence of the small reoffense rate for child offenders
generally (because they are driven by different impulses than adults are) and for RSafe
graduates in particular. The court also reasoned that living in a household supervised by
the adult Winsomes, even if Roland were living there too, would be a more normal family
dynamic than returning to Alaska, where a "workable transition plan" had yet to be
developed.
Finally, Jude relies on testimony that the Winsomes asked Dana to call them
"Mom" and "Dad" in order to avoid confusing their younger son; according to Jude,
"[t]his demonstrated both a desire to replace Jude with Mr. Winsome" and a failure to
prioritize Dana's needs over this "minor concern" for their son. We understand why Jude
would find this troubling, but the superior court does not appear to have addressed it, and
given the court's other best interests findings it is very unlikely to have made a difference.
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95
Importantly, the court found that the Winsomes provide Dana a stable environment; in
contrast, her therapists testified that transitioning her to her father's care, at this stage in
his rehabilitation, would be a long-term and uncertain process likely to cause her
96
emotional harm.
We conclude that the superior court did not abuse its discretion by
concluding that guardianship was in Dana's best interests.
V. CONCLUSION
The superior court's long-term guardianship order is VACATED. The case
is REMANDED for reconsideration of whether clear and convincing evidence, including
the testimony of qualified expert witnesses, supports a finding that Dana would likely
suffer serious emotional or physical damage if placed in Jude's custody
95 See AS 47.05.065(4)(A) - (B) (stating that "the child should be placed in
a safe, secure, and stable environment" and "the child should not be moved
unnecessarily").
96 Such a move would currently require two transitions: one from the
Winsomes to a temporary placement in Alaska, then, assuming that Jude progresses
appropriately with his rehabilitation, another from that placement to his home.
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STOWERS, Chief Justice, with whom WINFREE, Justice, joins, concurring in part and
dissenting in part.
1
I disagree with this court's resolution of the likelihood of harm issue.
Looking at the superior court's findings in their totality, it is clear to me that the superior
court was not clearly mistaken in finding that Jude presents a substantial likelihood of
harm to his daughter, given, among other things, the testimony of the daughter's therapist
(Merz), who - as this court observes in its opinion at page 29 - "testified that Jude 'has
displayed a pattern of failing to understand [Dana's]pasttraumas and doesnot understand
the child's fears and anxieties.' " This court's discussion at page 29-30 buttresses the
superior court's finding on this issue.2
1 "Whether a child would likely suffer serious physical or emotional harm
if returned to a parent's custody is a question of fact." Chloe O. v. State, Dep't of Health
& Soc. Servs., Office of Children's Servs. , 309 P.3d 850, 855 (Alaska 2013) (citing
Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 249 P.3d
264, 270 (Alaska 2011)). "In child in need of aid cases, 'we review the trial court's
factual findings for clear error . . . .' " Emma D. v. State, Dep't of Health & Soc. Servs.,
Office of Children's Servs. , 322 P.3d 842, 849 (Alaska 2014) (quoting Chloe O. , 309
P.3d at 856). "We will find clear error only when a review of the entire record leaves us
'with a definite and firm conviction that the [trial court] has made a mistake.' " David S.
v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 270 P.3d 767, 774
(Alaska 2012) (citing S.H. v. State, Dep't of Health & Social Servs., Div. of Family &
Youth Servs. , 42 P.3d 1119, 1122 (Alaska 2002)).
2 This court explains at pages 29-30 of the opinion: "The [superior] court
found that Jude . . . 'is neither legally nor psychologically capable of parenting [Dana].'
It found that despite Jude's positive response to treatment, he continued to 'put[] his own
needs and desires first.' The court noted the 'narcissistic personality traits' observed by
both Dr. Blair and Dr. Lazur and that Jude continued to exhibit those traits at trial.
Merz's testimony supported these findings; although she had had no direct contact with
Jude, she reported that his telephone calls gave Dana 'a big increase in anxiety and
uncertainty' in part because of Jude's failure to recognize that his promises about their
(continued...)
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It does not matter that this testimony came from the daughter's therapist as
opposed to Drs. Blair and Lazur. Merz's testimony is directly relevant to the issue and
is compelling. Under our precedent the superior court is permitted to aggregate other
3 and the court did consider the expert testimony of Drs.
testimony with expert testimony,
Blair and Lazur. And while one might, looking at their testimony alone, find that the
likelihood of the father molesting his daughter is slight, the court is not limited to
considering their testimony in isolation, nor is the likelihood of the father molesting his
daughter the only consideration in determining whether there is a likelihood of harm to
the daughter if she were placed with her father. The testimony of Merz addressed other
serious concerns about the daughter's problems and needs and is more than sufficient to
support the trial court's factual finding that there is a serious likelihood of harm if the
daughter were placed in her father's custody. Thus, I dissent from this court's decision
on this issue.
I concur with the remainder of this court's opinion and believe the superior
court's order granting the long-term guardianship should be affirmed.
2(...continued)
future together aggravated Dana's 'fear of the unknown.' "
3
See Diana P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 355 P.3d 541, 547 (Alaska 2015) ("While ICWA requires that the evidence
supporting [the finding that continued custody is likely to cause serious harm to the
child] include expert testimony, it does not . . . require that the expert testimony provide
the sole basis for the court's conclusion.").
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