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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robert A. v. Tatiana D. (10/23/2020) sp-7486
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT A., )
) Supreme Court No. S-17255
Appellant, )
) Superior Court No. 1JU-10-00753 CI
v. )
) O P I N I O N
TATIANA D., )
) No. 7486 - October 23, 2020
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Mary Alice McKeen, Juneau, for Appellant.
Jahna M. Lindemuth and Samuel G. Gottstein, Holmes
Weddle & Barcott, PC, Anchorage, and Michael L.
Lessmeier, Lessmeier &Winters, LLC, Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Stowers, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
In its initial custody decision the superior court found that a father had a
history ofcommittingdomesticviolence, and it thereforeestablishedbenchmarks for him
to meet before he could begin supervised visitation with his children. The father did not
appeal that decision. He nonetheless sought to relitigate the domestic violence finding
in subsequent proceedings, but the superior court ruled that relitigation of the issue was
barred by collateral estoppel.
----------------------- Page 2-----------------------
Following an extended evidentiary hearing, the superior court found that
the father had met the benchmarks set by the earlier order and conditionally granted his
request that he be allowed to begin supervised visitation. But the superior court also said
that because of the "challenging" nature of the case it could not approve a visitation plan
without more detail, such as the identity of individuals willing to act as counselors and
visitation coordinators and how the parties would pay for their services.
The father appeals the superior court's order granting in part his motion for
supervised visitation, including its application of collateral estoppel to the earlier finding
of domestic violence. Because we conclude that the superior court did not abuse its
broad discretion or otherwise err in this custody case, we affirm its visitation order.
II. FACTS AND PROCEEDINGS
1 have a son and a daughter together; they also
Robert A. and Tatiana D.
have several older children with former partners. Robert and Tatiana ended their
relationship in 2010 following allegations that Robert had sexually abused their son and
Tatiana's older son, N.C.
After a custody trial in late 2011, the superior court, in a May 2012 order,
awarded Tatiana sole legal and primary physical custody of the couple's two children.
The court found by a preponderance of the evidence that Robert had committed acts of
sexual abuse against N.C., though it found insufficient evidence to conclude that he had
also abused the couple's son. The court's finding about N.C.'s abuse was supported by
two independent medical evaluations as well as testimony about the child's behavior and
mental health. Robert had disputed the sexual abuse allegations at trial, but the court did
not find him credible and gave his testimony little weight.
1 We use pseudonyms and initials to protect the parties' privacy.
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----------------------- Page 3-----------------------
The 2012 custody order required Robert to "have a psychological
evaluation with a licensed provider trained in the treatment of sexual offenders" and to
"comply with all treatment recommendations." He was not allowed visitation "initially"
but could begin it under certain conditions:
If the children's therapist(s) and the sex offender provider
believe it is appropriate for supervised visitation to begin
once [Robert] is engaged in treatment, [Robert] may file a
motion with the court for approval of limited supervised
visitation. If such a motion is filed, the court will appoint a
guardian ad litem to make recommendations about whether
and how supervised visitation should begin.
Robert did not appeal the 2012 order.
Over the next several years Robert filed a number of motions to modify the
custody order or to begin supervised visitation, but his motions were denied on grounds
that he had not yet satisfied the 2012 order's conditions. He brought another motion to
begin supervised visitation in 2016, and the court held an evidentiary hearing over eight
days in 2017 and 2018. During the course of this proceeding Robert made repeated
attempts to relitigate the 2012 finding of sexual abuse, but the court rejected these
attempts, ruling that relitigation of the issue was barred by collateral estoppel.
In a written order following the hearing, the superior court granted in part
Robert's motion to begin supervised visitation. The court concluded that Robert had
substantially complied with the requirements of the 2012 order and it was therefore
"appropriate for supervised visitation to begin," though with caveats. The court noted
that "[t]he process of resumption of visitation would, undoubtedly, be extremely
challenging," primarily because the children were afraid of Robert and would need
counseling to address that fear. The court therefore wanted to have "a specific plan and
[to know] what professionals would be involved." The court believed that a definitive
best interests determination was not possible "without knowing who would supervise the
-3- 7486
----------------------- Page 4-----------------------
children, what counselor would be available to work with the children, how much this
would cost, and who could afford to pay for these services."
Robert appeals, arguing essentially two points: (1) that the court should
have allowed him to relitigate the 2012 sexual abuse finding, and (2) that he met the
benchmarks for supervised visitation set by the superior court's 2012 order and was
therefore entitled to an unequivocal order permitting visitation.
III. STANDARD OF REVIEW
2
The superior court has "broad discretion in child custody decisions." We
3
review visitation decisions for abuse of discretion. "A decision constitutes abuse of
discretion if it is 'arbitrary, capricious, manifestly unreasonable, or . . . stems from an
4
improper motive.' "
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion By Declining To
Allow Relitigation Of Its 2012 Sexual Abuse Finding.
In 2012 the superior court found by a preponderance of the evidence that
Robert committed acts of sexual abuse against N.C. and therefore had a history of
perpetrating domestic violence, a conclusion which by statute has further repercussions
5
Although the court found that Tatiana also had a history of
in custody proceedings.
perpetrating domestic violence, it awarded her sole legal and primary custody because
2 Thompson v. Thompson, 454 P.3d 981, 988 (Alaska 2019) (quoting
Geldermann v. Geldermann , 428 P.3d 477, 481 (Alaska 2018)).
3 John E. v. Andrea E., 445 P.3d 649, 658 (Alaska 2019).
4 Id. at 654 (alteration in original) (quoting del Rosario v. Clare, 378 P.3d
380, 383 (Alaska 2016).
5 See AS 25.24.150(g)-(j).
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----------------------- Page 5-----------------------
6
of its finding that she was "less likely to continue to perpetrate the violence" in the
future. Robert did not appeal the 2012 order. The parties' custody dispute continued,
however, and in a 2018 order on pending motions the superior court observed that "it
ha[d] been a consistent feature of [Robert]'s litigation strategy to suggest that the finding
of sexual abuse was incorrect." The court applied the doctrine of collateral estoppel to
prevent Robert from relitigating the sexual abuse allegations in the then-ongoing
7 and Robert now challenges that decision. We
evidentiary hearing on visitation,
conclude that although the superior court should have applied a different doctrine - the
law of the case rather than collateral estoppel - its decision to prevent relitigation of the
sexual abuse issue was not an abuse of discretion.
Collateral estoppel "limits the relitigation of an issue in a subsequent suit,
as opposed to a subsequent stage of the same suit," whereas the law of the case doctrine
"limits redetermination of rulings made earlier in the same lawsuit."8 The preclusive
effect of the law of the case doctrine extends to "the reconsideration of issues which have
6 See AS 25.24.150(i) (providing that when both parents have a history of
perpetrating domestic violence, the court shall either (1) award sole legal and physical
custody to the parent who is less likely to continue to perpetrate violence and require
custodial parent to complete a treatment program; or (2) if necessary to protect the
welfare of the child, award custody to a suitable third party).
7 At the same time, the superior court denied Tatiana's motion to preclude
future attempts by Robert to relitigate the sexual abuse issue, noting that "it would be
inappropriate to preclude such an attempt without knowing the grounds upon which it
might hypothetically be sought."
8 Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1317 (7th Cir. 1995)
(emphasis in original); see also Money v. Tyrell Flowers, 748 N.W.2d 49, 60 (Neb. 2008)
("Unlike the doctrines of res judicata and collateral estoppel, which involve successive
suits, the law-of-the-case doctrine involves successive stages of one continuing
lawsuit.").
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----------------------- Page 6-----------------------
been adjudicated in a previous appeal in the same case." 9 And "the doctrine is equally
applicable to issues that have been fully litigated in the superior court and as to which
10 Thus a final judgment that could have been appealed
no timely appeal has been made."
but was not - like the superior court's 2012 custody order in this case - becomes law
of the case.11
In his challenge to the superior court's use of collateral estoppel, Robert
argues that the issue decided in 2012 (following the 2011 trial) was not identical to the
one he sought to litigate in the 2017-2018 evidentiary hearing. He argues that the 2011
trial was for the purpose of determining what conditions should be placed on visitation,
whereas the 2017-2018 evidentiary hearing was for the purpose of determining whether,
having met those conditions, he could begin visitation and if so under what terms. But
the superior court expressly applied collateral estoppel to a specific finding - "whether
[Robert] sexually abused N.C." - not to the legal consequences of that
finding - whether and on what conditions visitation could begin. Robert recognized
this in the superior court, devoting many pages in his motion for supervised visitation to
"facts that call into question the court's original finding" of sexual abuse. A specific
issue of fact is a proper subject for law of the case as well as for collateral estoppel.12
9 Barber v. State, Dep't of Corr., 393 P.3d 412, 419 (Alaska 2017) (quoting
Beal v. Beal, 209 P.3d 1012, 1016 (Alaska 2009)).
10 Id. (quoting Dunlap v. Dunlap, 131 P.3d 471, 476 (Alaska 2006)).
11 Id.
12 See Andrea C. v. Marcus K., 355 P.3d 521, 527 (Alaska 2015)
("[C]ollateral estoppel bars relitigaton of all issues of fact . . . that were actually litigated
and necessarily decided in [a] prior proceeding." (alterations in original) (quoting Wall
v. Stinson, 983 P.2d 736, 740 (Alaska 1999))); Dieringer v. Martin, 187 P.3d 468, 473-
74 (Alaska 2008) (applying law of the case doctrine to factual issues involving
(continued...)
-6- 7486
----------------------- Page 7-----------------------
If the elements of the law of the case doctrine are met, the superior court
still has discretion whether to apply it, because it " 'is not an absolute rule of law' but
13 We have no doubt, however, that the
rather 'a matter of sound judicial policy.' "
superior court would have reached the same conclusion about the sexual abuse claimhad
it applied the law of the case doctrine, and its decision to apply collateral estoppel instead
therefore does not affect our review.14 In fact, in one of the court's oral discussions of
the issue several years before the custody order now on appeal, it suggested that the
settled fact of sexual abuse was subject to the law of the case doctrine, noting that
12 (...continued)
defendant's management of estate); Rooney v. Rooney, 914 P.2d 212, 216 (Alaska 1996)
(applying lawof the case doctrine to issue of biological parentage). Robert briefly makes
several related arguments. He argues that the issues are not identical because the parties
had different burdens of proof in 2011 and 2018, but the burden of proof in both
instances was a preponderance of the evidence, as we explain below. Robert also argues
that the 2012 finding that he "sexually abused N.C. . . . more than once" is too non-
specific to be a valid finding of "a history of perpetrating domestic violence" under
AS 25.24.150(g)-(j). But this does not significantly advance Robert's argument, as the
court is required to take into account "any evidence of domestic violence [or] child
abuse" - not just whether there is a history of domestic violence - when making
decisions about custody and visitation. AS 25.24.150(c)(7) (emphasis added).
13 Hallam v. Holland Am. Line, Inc., 180 P.3d 955, 958 (Alaska 2008)
(quoting West v. Buchanan, 981 P.2d 1065, 1067 (Alaska 1999)), see id. at 959 ("[T]he
law of the case doctrine implicates a court's discretion.").
14 See Leahy v. Conant, 436 P.3d 1039, 1043 (Alaska 2019) ("We may affirm
the superior court on any basis supported by the record, even if that basis was not
considered by the court below or advanced by any party." (quoting Brandner v. Pease,
361 P.3d 915, 920 (Alaska 2015))); State & Cty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d
693, 698 (Tex. 2001) (concluding that law of the case doctrine was inapplicable but
affirming on collateral estoppel grounds).
-7- 7486
----------------------- Page 8-----------------------
whether to allow relitigation of the issue was ultimately discretionary regardless of the
doctrine used.
In the collateral estoppel context, the court's discretion to apply the
doctrine, assuming that the underlying elements are satisfied, is "tempered by principles
15 In the law of the case
of fairness in light of the circumstances of each particular case."
context the court's discretion is more strictly bounded: "[I]ssues previously adjudicated
can only be reconsidered where there exist exceptional circumstances presenting a clear
error constituting a manifest injustice."16 A court that declines to review an issue
because fairness does not require it "in light of the circumstances" clearly has not found
"exceptional circumstances presenting a clear error constituting a manifest injustice."
We need only consider, therefore, whether the record shows such
"exceptional circumstances" that it was an abuse of discretion not to allow Robert to
relitigate the sexual abuse claim. He argues that the court misinterpreted some of the
evidence in making its 2012 finding, and that other evidence - particularly physical
symptoms relied on by one of the testifying doctors - would be considered unreliable
"under current guidelines." He argues that when he obtained transcripts of the forensic
interviews of the children in 2017 it was a "bombshell development," and he faults the
attorney who represented him at the 2011 trial both for "inadequately challeng[ing] the
medical evidence" and for failing to timely acquire the investigative materials.
The superior court, observing that the investigative materials existed at the
time of the 2011 trial, assumed that Robert's then attorney should have done more to
15 McAlpine v. Pacarro , 262 P.3d 622, 627 (Alaska 2011) (quoting Misyura
v. Misyura, 242 P.3d 1037, 1040 (Alaska 2010)).
16 State, Commercial Fisheries Entry Comm'n v. Carlson (Carlson V), 270
P.3d 755, 760 (Alaska 2012) (quoting State, Commercial Fisheries Entry Comm'n v.
Carlson (Carlson III), 65 P.3d 851, 859 (Alaska 2003)).
-8- 7486
----------------------- Page 9-----------------------
acquire themand that the attorney's performance may have fallen short in other respects.
The court nonetheless concluded that Robert received "a full and fair hearing" and had
not shown that the outcome would have been different with different representation; the
sexual abuse finding, the court said, was based primarily on credibility determinations,
not "on whose lawyer did a better job."
We note also that over a decade has passed since N.C. made his allegations
of sexual abuse, and the parties litigated custody issues for years in light of the court's
17 With the passage of time the value of new evidence may
2012 findings on the subject.
be offset by failures of memory.18 And we have emphasized the special importance of
finality in custody matters.19
Wearenotpersuadedthat"thereexistexceptional circumstances presenting
20 that would require making an exception
a clear error constituting a manifest injustice"
17 Cf. Rivera-Flores v. P.R. Tel. Co. , 64 F.3d 742, 746 (1st Cir. 1995) ("Trial
courts as a rule act within their discretion in refusing to reopen a case where the
proffered 'new' evidence is insufficiently probative to offset the procedural disruption
caused by reopening.").
18 See Wade v. Brady, 460 F. Supp. 2d 226, 247-48 (D. Mass. 2006) ("[T]he
chance of reliable adjudication may decrease in a subsequent trial because the truth-
finding value provided by new evidence is outweighed by the inevitable erosion of
memory and dispersion of witnesses that happens over time.").
19 See McAlpine, 262 P.3d at 626 ("Our cases demonstrate that the change in
circumstances requirementfor custody modification 'is intended to discourage continual
relitigation of custody decisions, a policy motivated by the judicial assumption that
finality and certainty in custody matters are critical to the child's emotional welfare.' "
(quoting Peterson v. Swarthout, 214 P.3d 332, 340-41 (Alaska 2009))).
20 Carlson V, 270 P.3d at 760 (quoting Carlson III, 65 P.3d at 859).
-9- 7486
----------------------- Page 10-----------------------
to the law of the case doctrine. The superior court did not abuse its discretion when it
21
refused to allow Robert to relitigate the 2012 finding of sexual abuse.
B. The Superior Court Did Not Err Or Abuse Its Discretion When It
Granted Robert's Motion In Part And Requested More Information
Before Ordering That Supervised Visitation Could Begin.
ThesuperiorcourtgrantedRobert's motionfor supervised visitation in part.
The court determinedthat Robert, havingobtained an evaluation with alicensed provider
and having followed the provider's recommendations, met the benchmarks for
supervised visitation set out in the 2012 order, and therefore "supervised visitation
should commence, if a suitable plan can be developed to do it safely and without harm
to the children." The court found that these caveats prevented it from entering an order
"that supervised visits begin immediately": "[T]he court cannot grant this request
without knowing who would supervise the children, what counselor would be available
to work with the children, how much this would cost, and who could afford to pay for
these services."
Thecourt had expressed thesamereservations orally during theevidentiary
hearing. Noting that its task was to decide "whether the visitation that's requested would
be harmful to the children," the court observed that "the devil's in the details": "What
makes that decision hard here is that what I'm largely being asked to decide upon is the
abstract concept of supervised visitation, not a particular plan for the institution of
supervised visitation." Robert responded to the court's concern by presenting, in his
21 Robert also argues that the superior court erred by failing to consider
exceptions to the collateral estoppel doctrine applicable when a ruling unforeseeably
impacts non-parties or was not fully and fairly adjudicated the first time. See
RESTATEMENT (SECOND) OF JUDGMENTS § 28(5) (AM.L AW INST .1982). Robert does not
persuade us either that the court failed to consider the Restatement factors or that the
court erred by failing to find that they favored Robert.
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----------------------- Page 11-----------------------
written closing argument, a 17-point "Implementation Plan" by which he would
gradually reenter his children's lives. The plan depended on the involvement of a
visitation coordinator, a visitation supervisor, and a counselor for the children; Robert
identified individuals he found acceptable for each role.
The court explained in its written order why Robert's proposal did not
satisfy its concerns. The court noted that "[t]he process of resumption of visitation" was
going to "be extremely challenging" because "[t]he children fear their father, and it is
clear that any visitation would have to begin in the context of counseling to address this
fear." Assessing the children's best interests required "balancing the effectiveness of [a
proposed visitation] plan as a way to reintroduce [Robert] into his children's lives safely
against the potential risks or adverse consequences to the children." This assessment
required knowing who was actually willing to perform as counselors and supervisors,
what their services would cost, and how the parents could pay for them. The court
concluded, "Until a specific plan is identified, the court cannot weigh these factors and
make a definitive best interests determination." The court invited Robert to move
forward by proposingaspecificplan and identifying therapistswhowereactually willing
to participate; if Tatiana objected to his proposal, he could "file an appropriate motion."
But Robert apparently made no further attempt to satisfy the court's order, instead filing
this appeal.
The essence of Robert's argument on appeal is that, having "met the
benchmarks for supervised visitation" set by the 2012 order, he was entitled to "an order
that supervised visitation is in the best interests of the children and should begin as soon
as possible." His argument misinterprets both the 2012 and the 2018 orders. First, the
2012 order did not establish an automatic right to supervised visitation once its
"benchmarks" were met. Under the order's express terms, once "the children's
therapist(s) and the sex offender [treatment] provider believe it is appropriate for
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----------------------- Page 12-----------------------
supervised visitation to begin," Robert could file a motion for "limited supervised
visitation," at which point the court would "appoint a guardian ad litem to make
recommendations about whether and how supervised visitation should begin."
(Emphasis added.) "[W]hether and how supervised visitation should begin" was
always - appropriately - going to be subject to the court's further consideration of the
children's best interests regardless of what Robert had accomplished in the meantime. 22
Robert also misinterprets the 2018 order on appeal. He claims that the
order "continues a denial of supervised visitation that has been in effect for nine years"
when it actually grants his request for supervised visitation, to begin as soon as a safe
plan can be put in place. Robert argues that the order's conditions are so onerous that
he cannot reasonably comply with them. He contends that he is caught in a catch-22 in
which he is required to line up professionals before the court will approve a visitation
plan, whereas the professionals will not agree to work with him in the absence of a court-
23 The court acknowledged at the evidentiary hearing that there
approved visitation plan.
22 As the court observed at the evidentiary hearing, an order allowing
visitation to begin automatically once a parent met required benchmarks might not
adequately safeguard the children's best interests. The court posed a hypothetical in
which a treating therapist determined that the parent was "an unrepentant pedophile"
who could not be successfully treated. The court pointed out that it was unlikely
visitation would be in the child's best interests even though the benchmark was
technically met because the therapist recommended no further treatment. Robert takes
issue with the court's use of this hypothetical, which he claims mischaracterizes his own
situation, but the court was clearly not describing Robert himself; rather, it was testing
the limits of his argument for an "automatic" entitlement to visitation.
23 Robert's arguments can be confusing, as they sometimes seem oblivious
to the 2018 order's actual terms. He argues, for example, that he "is entitled to a decision
in principle that he should have contact with his children even if it takes a while for the
details to be worked out." But that is precisely what the superior court ordered: "The
court finds that it is appropriate for supervised visitation to begin, in the context of
(continued...)
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----------------------- Page 13-----------------------
was a small pool of candidates in Juneau qualified to serve as counselors and that finding
the right person "would be challenging," but that it was up to the parties, not the court,
to make the effort. And the court's insistence that visitation proceed only with
professional support was reasonable even if it presented difficulties for the parties; the
court's ultimate responsibility in any visitation order is to ensure that the children's best
24
interests are protected.
Robert also argues that "the superior court's failure to order an immediate
start of the process of supervised visitation constitutes an unlawful de facto termination
of his parental rights." We considered and rejected an argument like Robert's in Nelson
v. Jones (Nelson II).25 In that case the superior court ordered that a father accused of
sexual abuse be allowed supervised visitation with his child only on condition that he
26 The father refused to admit to the
participate in a sex-offender treatment program.
abuse in therapy, and his treatment was therefore terminated; years of custody litigation
27 On appeal from the denial of one of several motions for modification of
followed.
custody, the father argued that the court had terminated his parental rights "in practical
23 (...continued)
counseling with a reunification therapist," with the details subject to agreement or further
motions.
24 See Long v. Long, 816 P.2d 145, 158 n.12 (Alaska 1991) (noting that in
contentious custody case, superior court "should very carefully and precisely fix the
terms of visitation to facilitate the chances that the custody and visitation schemes will
work in the best interests of the children").
25 944 P.2d 476, 479-80 (Alaska 1997).
26 Id. at 478.
27 Id.
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----------------------- Page 14-----------------------
28
effect by depriving him of all visitation with [his child] for almost ten years." He
argued that he had "repeatedly moved to modify the visitation order, but ha[d] been
denied each time," and that "these facts constitute[d] a de facto termination of his
29
parental rights."
In response to this argument, we pointed out that we had decided on an
earlier appeal that the superior court did not abuse its discretion by "conditioning [the
father]'s visitation on his admitting the abuse."30 The father could therefore "attempt to
reestablish visitation whenever he [chose], by complying with" the conditions we had
determined to be reasonable.31 Regardless of "whether a court could constructively
terminate parental rights in the manner asserted," we declined to find that termination
had occurred.32
Robert argues that Nelson II supports his argument because, unlike the
father in the Nelson cases, he did comply with the superior court's visitation conditions
and visitation was still denied. Again, we are constrained to point out the actual text of
the superior court's order: supervised visitation was granted, with the details to be
28 Id. at 479.
29 Id.
30 Id. at 479-80; see also Nelson v. Jones (Nelson I), 781 P.2d 964, 969-70
(Alaska 1989) .
31 Nelson II, 944 P.2d at 480.
32 Id. (emphasis added); see also Terry S. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 168 P.3d 489, 498 (Alaska 2007) (relying on Nelson
cases to conclude that superior court's order conditioning visitation on parent's
participation in sex-offender treatment did not need to meet beyond-a-reasonable-doubt
standard of proof required for termination of parental rights under Indian Child Welfare
Act).
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----------------------- Page 15-----------------------
worked out to ensure protection of the children's best interests. The court's order was
not an abuse of discretion.
C. The Superior Court AppliedTheCorrect EvidentiaryStandard When
Granting Robert's Motion In Part.
The superior court did not explicitly state the burden of proof it was
applying in the written order under review, although its oral remarks at the close of the
evidentiary hearing indicated that it intended to apply the preponderance of the evidence
33
standard generally applicable to civil cases. This was the correct standard,
and we
34
assume the superior court applied it absent evidence to the contrary.
Robert takes issue with this, arguing that "[a] court should not be able to
deny supervised visitation in a private custody case unless there is clear and convincing
evidence to support the denial and a parent has the right to expedited judicial review of
the decision," again analogizing the restrictions on his visitation to cases involving the
35
State's termination of parental rights. He argues that a heightened evidentiary standard
33 SeeThompson v. Thompson, 454 P.3d 981, 990 (Alaska2019) ("Ingeneral,
each parent in a custody proceeding must establish by a preponderance of the evidence
that the parent's proposed custody plan would serve the children's best interests,
including that his or her plan can adequately provide for the children's needs.").
34 Wasser &WintersCo.v. RitchieBros. Auctioneers (Am.), Inc., 185 P.3d 73,
83 (Alaska 2008); see also Anchorage Police & Fire Ret. Sys. v. Gallion, 65 P.3d 876,
883-84 (Alaska 2003) (holding that this court "can safely assume the superior court
recognized and applied the correct standard" of proof beyond a reasonable doubt when
"[t]here [was] no indication the court applied some other standard" and "did not mention
the lesser preponderance or clear and convincing standards").
35 See K.T.E. v. State, 689 P.2d 472, 478 (Alaska 1984) (noting that the
evidentiary standard to be applied in Child in Need of Aid proceeding when Office of
Children's Services denies visitation to parent whose child is in State custody is "clear
and convincing evidence . . . that the child's best interests were served by disallowing
(continued...)
-15- 7486
----------------------- Page 16-----------------------
is required by principles of equal protection and due process, given the law's "extremely
36
strong presumption in favor of [contact] between a child and both parents." This
argument fails for several reasons.
First, the argument again ignores the superior court's actual holding in this
case. The court did not deny visitation; to the contrary, it concluded that a "complete
rejection of any visitation" was not "legally tenable on this record" and that supervised
visitation "would be in the best interests of the children" as long as the details could be
worked out. Just as a conditional grant of visitation is not the same as a termination of
parental rights, so too a conditional grant of visitation is not the same as a denial of
visitation.
Second, Robert argues that thesuperiorcourtshould havebased its decision
to deny visitation on findings made by clear and convincing evidence. But the finding
that necessitated supervised visitation in the first place was the 2012 finding of sexual
abuse, which was not appealed and, as explained above, is now the law of the case.
V. CONCLUSION
The superior court's order granting in part Robert's motion to commence
supervised visitation is AFFIRMED.
35 (...continued)
parental visitations").
36 Robert cites Nelson I in support of his argument that a clear and convincing
standard should apply in a private custody case, but in Nelson I the standard was not
imposed by the court, but rather was part of the parties' stipulated findings of fact. 781
P.2d 964, 966 (Alaska 1989).
-16- 7486
----------------------- Page 17-----------------------
In the Supreme Court of the State of Alaska
Robert A., Supreme Court No. S-17255
Appellant,
Order
v. Petition for Rehearing
Tatiana D.,
Appellee. Date of Order: 10/23/2020
JU-10-00753CI
Trial Court No. 1
Before: Bolger , Chief Justice , Winfree , Maassen , and Carney,
Justices [Stowers, Justice, not participating].
On consideration of the Petition for Rehearing filed on 9/3/2020, and the
response filed on 9/29/2020,
IT IS ORDERED:
1. The Petition for Rehearing is GRANTED IN PART. The phrase "showing the
weakness of the police investigation" shall be struck from Page 8.
2. Opinion No. 7477, issued on 8/14/2020, is WITHDRAWN.
3. Opinion No. 7486 is issued on this date in its place.
Entered at the direction of the court.
C
lerk of the Appellate Courts
_______________________________
Meredith Montgomery
cc: Supreme Court Justices
Judge Pallenberg
Publishers
Distribution:
McKeen, Mary Alice
Lessmeier, Michael L
Lindemuth, Jahna M.
Gottstein, Samuel Gekler
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