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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brad S. (Father) v. State of Alaska, DHSS, OCS (2/7/2025) sp-7743
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
BRAD S., )
) Supreme Court No. S-18719
Appellant, )
) Superior Court Nos.
v. ) 3KN-21-00034/00035/00036/00037 CN
) (Consolidated)
STATE OF ALASKA, DEPARTMENT )
OF FAMILY & COMMUNITY ) O P I N I O N
SERVICES, OFFICE OF )
CHILDREN'S SERVICES, ) No. 7743 - February 7, 2025
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Lance Joanis, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Appellant. Mary Ann Lundquist, Senior Assistant Attorney
General, Fairbanks, and Treg Taylor, Attorney General,
Juneau, for Appellee.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
BORGHESAN, Justice.
CARNEY, Justice, concurring.
INTRODUCTION
A father of four appeals the ruling that his children were in need of aid.
The children were removed from the home after allegations that the father had sexually
----------------------- Page 2-----------------------
abused his 12-year-old daughter. The primary issue before the superior court was
whether the father's conduct, which included washing his daughter's breasts during
lengthy showers together, could be reasonably characterized as normal caretaking,
interaction, or affection. On appeal the father contends that the superior court relied on
facts not in evidence, violated his Fifth Amendment rights by drawing an adverse
inference from his refusal to testify, and erred in concluding that the conduct amounted
to sexual abuse.
We see no errors that warrant reversal and therefore affirm the superior
court's adjudication order.
FACTS AND PROCEEDINGS
A. Facts
Brad S. and his wife Rebecca are the parents of four children: Brad Jr.,
1
Gerald, Bettina, and Louisa.
In October 2021 a friend of Bettina's alleged that Brad sexually assaulted
her during a sleepover. The friend also alleged that she had seen Brad grope Bettina's
breasts and that Bettina had acted as if that was normal behavior. After learning of the
accusations, the Alaska State Troopers interviewed Bettina and Rebecca.
During her interview Rebecca stated that while the children slept in
different rooms from the one she and Brad shared, the girls would sometimes sleep in
their parents' bed "just randomly whenever," sometimes naked. She explained that the
family members generally were not embarrassed if anyone saw them naked. Rebecca
noted, however, that the boys were "at that age" when they had started to become a little
embarrassed to see her naked. She also stated that although the boys used to sleep in
their parents' bed, they had stopped doing so without being told that they were too old.
Rebecca also noted that Bettina, who was 12 years old at the time of these events, had
stopped walking around topless "since she started developing."
1 We use pseudonyms for all family members.
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Brad was arraigned on related criminal charges shortly after the interview.
Following the arraignment, the Troopers interviewed Rebecca again. Rebecca
explained that she thought it was normal that Bettina showered and slept with her
parents. She confirmed that she had seen Brad and Bettina sitting and talking together
in the shower, sometimes for 45 minutes at a time. Rebecca stated that she had
suggested to Brad several months earlier that it might be time for him to stop showering
with Bettina. Rebecca maintained that she had only raised the topic because Bettina
was getting older. According to Rebecca, Bettina had started menstruating the year
prior. Rebecca added that she "[didn't] know if [Bettina] ever would've thought that it
was weird" and that she "just didn't want to get to 16, 17 [years old]." According to
Rebecca, Bettina's brothers had stopped showering with their parents when they were
between 9 and 12 years old.
When asked for more detail about the showering, Rebecca explained that
the showers were "just like a washdown." She then added that "no hands were on
breasts longer than they should have been, in [her] opinion." Rebecca explained that
her daughters sometimes needed help washing and conditioning their hair but did not
indicate that Bettina could not wash her own body. The interviewing trooper asked,
"[I]f you were walking by and saw [Brad] with an erection in the shower with her, like
is that weird?" Rebecca responded, "Mm-mm (negative). No." The trooper then
clarified, "[H]e just has an erection in the shower?" Rebecca responded, "Yeah.
Sometimes it's just - like he'll be walking around the room and it will happen. He'll
have an erection."
The trooper asked whether Bettina had ever made any comments to
Rebecca that worried or concerned her. Rebecca responded that she had Brad's contact
saved in her phone as "Sexy Hubby" and that Bettina would sometimes refer to Brad as
"my sexy hubby." However, Rebecca indicated that Bettina only understood the phrase
to represent her parents' relationship.
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----------------------- Page 4-----------------------
Following Rebecca's disclosure that Brad showered and slept naked with
Bettina, the Office of Children's Services (OCS) met with the family to reassess the
children's safety. OCS did not believe that Rebecca would be able to protect the
children and discussed a safety plan with her. The children were subsequently removed
by OCS.
B. Proceedings
OCS filed a non-emergency petition to adjudicate all four children in need
of aid based on Bettina's friend's initial allegations and statements made by various
family members during their interviews. At the adjudication hearing in January 2022,
Brad's attorney advised the court that Brad was invoking his right to remain silent under
the Fifth Amendment and asserting a blanket privilege against any questions related to
the subject of the criminal charges against him.2 The court heard testimony from a
number of other witnesses, including an OCS worker who testified that the family's
younger daughter had confirmed seeing Brad "washing [Bettina's] boobs."
At the conclusion of the hearing, the court issued a temporary custody and
adjudication order, finding all four children in need of aid on grounds of sexual abuse
and neglect.3 The court noted that "time [did] not allow detailed findings to be written
or recorded and distributed as quickly as this order can be distributed." However, the
court stated that reunification efforts with Rebecca had been unsuccessful "due to her
lack of willingness to engage with OCS." The court found that it was "contrary to the
welfare of each child" to return to Brad's home at the time.
In March 2022 OCS petitioned the court to release the children from state
custody. The petition maintained that Brad "did perpetrate sexual abuse of his daughter,
2 See U.S. Const. amend. V ("No person shall . . . be compelled in any
criminal case to be a witness against himself . . . ."); Alaska Const. art. I, § 9 ("No
person shall be compelled in any criminal proceeding to be a witness against himself.").
3 AS 47.10.011(7), (9).
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[Bettina], and that [Rebecca] was aware of what was occurring in the home but was
unable/unwilling to stop further victimization by protecting the children." The petition
stated that "it was evident that [Rebecca] did not believe that [Brad] had sexually abused
his daughter or the other alleged victim." And though Brad's conditions of release
prohibited him from contacting his own children, the petition further noted that Rebecca
was facilitating "continued 'grooming' type behavior," such as Bettina's wearing
Brad's dog tags and sleeping in his old shirts. The petition explained that it was "no
longer beneficial for the children to continue with counseling" considering their
increasing reluctance to engage with their case worker and clinician. This petition was
4
not opposed.
Nearly two weeks later, and before ruling on the petition for release, the
court issued oral findings in support of the earlier adjudication order. The court first
discussed Rebecca's interviews with the Troopers, as well as a report produced by
Rebecca's expert witness at the adjudication hearing. The court then noted that Brad
had invoked his right to remain silent at the adjudication hearing. While acknowledging
Brad's right to not incriminate himself in his ongoing criminal case, the court explained
that it was drawing a negative inference from Brad's silence: that sexual contact
occurred, "meaning his rubbing his hands on, as [Rebecca] confirmed, [Bettina's]
breasts while in the shower naked." The court further inferred that Brad and Bettina
"regularly" slept in bed together naked.
4 In response to this petition, the guardian ad litem (GAL) filed a motion
seeking information from OCS prior to taking a position on the petition for release. The
superior court granted this motion, commenting that the petition for release of custody
was "not typical" and indeed "may [have been] nearly a formality, in that the
department's lack of presentation of further evidence may [have left] the court with no
factual basis to force the department to maintain custody or supervision that it [did] not
seek." Following this order, the GAL filed her non-opposition to the petition.
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----------------------- Page 6-----------------------
The superior court found that Brad had sexually abused Bettina based on
these inferences and a number of other factual findings. These findings included that
Bettina had started her period over a year before the investigation began, that Brad got
erections while he and Bettina were both sleeping naked in bed, and that Brad touched
Bettina's breasts while in the shower. The court also found that the children were at
substantial risk of being sexually abused because Rebecca failed to stop her husband's
conduct and continued to support him. The court also determined that the children were
in need of aid due to neglect.
One month later, the superior court granted the State's petition for release.
Brad appeals the court's adjudication order, arguing that the superior court's findings
were not based on facts in evidence, that the superior court violated his Fifth
Amendment right to remain silent, and that his conduct did not constitute sexual abuse.
STANDARD OF REVIEW
"Whether the superior court's factual findings satisfy applicable child in
need of aid statutes and rules is a question of law that we review de novo."5 "A superior
court's findings regarding whether a child is in need of aid" are "factual questions that
we review for clear error."6 "Findings of fact are clearly erroneous if a review of the
entire record in the light most favorable to the prevailing party below leaves us with a
7
definite and firm conviction that a mistake has been made."
5 S.H. v. State, Dep't of Health & Soc. Servs., Div. of Fam. & Youth Servs.,
42 P.3d 1119, 1122-23 (Alaska 2002).
6 Jimmy E. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. ,
529 P.3d 504, 512- 13 (Alaska 2023).
7 Id. at 513 (quoting Sherman B. v. State, Dep't of Health & Soc. Servs.,
Off. of Child.'s Servs., 310 P.3d 943, 949 (Alaska 2013)).
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----------------------- Page 7-----------------------
"The scope of the constitutional right against self-incrimination is 'a
question of constitutional law which we decide de novo.' "8 "Under the de novo review
standard, we exercise our independent judgment, and our 'duty is to adopt the rule of
9
law that is most persuasive in light of precedent, reason, and policy.' "
DISCUSSION
The core of this appeal is whether the superior court made factual or legal
errors in ruling that Brad engaged in unlawful sexual contact that placed the children in
need of aid.10 Brad raises three main arguments: first, that the superior court's
adjudication was based on "heavily misconstrued" facts and facts not in evidence;
second, that the superior court erred in drawing an adverse inference from Brad's
refusal to testify; and third, that the evidence did not support a finding that the children
were in need of aid under AS 47.10.011(7) due to sexual abuse. We first determine that
the court did not clearly err in making its factual determinations. We then conclude that
the court did not violate Brad's Fifth Amendment rights by drawing a negative inference
8 Goldsbury v. State, 342 P.3d 834, 836 (Alaska 2015) (quoting State v.
Gonzalez, 853 P.2d 526, 529 (Alaska 1993)).
9 Id. (quoting Johnson v. State , 328 P.3d 77, 81 (Alaska 2014)).
10 Brad's appeal is technically moot because the superior court released
custody to Rebecca and Brad and closed the case. See Reed S. v. State, Dep't of Health
& Soc. Servs., Off. of Child.'s Servs., 522 P.3d 182, 188 (Alaska 2022) ("If the party
bringing the action would not be entitled to any relief even if it prevails, there is no
'case or controversy' for us to decide." (quoting Peter A. v. State, Dep 't of Health &
Soc. Servs., Off. of Child.'s Servs., 146 P.3d 991, 994 (Alaska 2006))). However, the
adjudication order has consequences that justify appellate review because Brad is a
peace officer. Courts may decide otherwise-moot cases under the collateral
consequences exception when "a judgment may carry indirect consequences in addition
to its direct force." Id. (quoting Peter A., 146 P.3d at 994-95). "Certain CINA
adjudications may result in statutorily imposed consequences for parents who are
deemed responsible for their child's CINA status." Id. ; see 7 Alaska Administrative
Code (AAC) 10.905(f)(3). Since CINA adjudications pose adverse collateral
consequences for the future employment prospects of peace officers like Brad, we
consider Brad's appeal under the collateral consequences exception.
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----------------------- Page 8-----------------------
against him. We finally hold that the evidence presented can be construed as
demonstrating sexual contact, and thus that the superior court did not err in adjudicating
Bettina as a child in need of aid.
A. The Superior Court Did Not Clearly Err In Making Its Factual
Findings.
Brad argues that the superior court's conclusion that sexual abuse
occurred was based on "heavily misconstrued" facts and facts not in evidence. In
reviewing the record, we are not left with a definite and firm conviction that the superior
court erred in making its factual findings.
First, Brad contests the court's statement that he "sometimes may have
had an erection" while showering with Bettina. But this statement is based on
Rebecca's own statements during her interviews. When asked, "[I]f you were walking
by and saw [Brad] with an erection in the shower with her, like is that weird?" Rebecca
responded, "Mm-mm (negative). No." The interviewing trooper then clarified, "[H]e
just has an erection in the shower?" Rebecca responded, "Yeah. Sometimes it's just
- like he'll be walking around the room and it will happen. He'll have an erection."
This exchange shows that Rebecca believed it was not uncommon or weird to see Brad
exhibit sexual arousal around the house, including in the shower with Bettina.
However, we note that the court did not actually make a factual finding that Brad had
an erection while showering with Bettina, so we do not treat this statement as such.
Second, Brad argues that the court's finding that he "gets erections while
[Bettina] is naked in bed with him" was incorrect and unsupported by the record.
However, Rebecca confirmed that Bettina still sometimes slept naked in her parents'
bed. And though Rebecca did not specifically say that Brad was sexually aroused when
this happened, this is not a far leap to make from Rebecca's separate confirmation that
it would not be weird to see Brad with an erection around the house or while showering
with Bettina. Thus, we are not left with a definite and firm conviction that the superior
court erred in making this finding.
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Third, Brad contends that he never "rubbed" his hands on Bettina's breasts
in the shower, which was the term the superior court used to describe his conduct. Brad
is correct that this word was never used by any parties or witnesses to the case. During
her interviews, Rebecca described the showers as "just like a washdown." And during
trial, an OCS worker testified that the family's younger daughter had confirmed seeing
Brad "washing [Bettina's] boobs."
While we recognize that the word "rubbed" sounds more lurid than the
word "washed," the superior court's use of "rubbed" does not undercut the key finding
that Brad had "touch[ed]" Bettina's breasts in the shower. Though Rebecca stated that
"no hands were on breasts longer than they should have been, in [her] opinion," it is
undisputed that Brad touched Bettina's breasts for some period of time.11 And the
superior court was not required to accept Rebecca's characterization of the touching as
normal or appropriate.
The superior court's finding is also supported by other evidence presented.
Brad and Bettina regularly took lengthy showers together, sometimes sitting and talking
for 45 minutes in the shower. At the time of the investigation, Bettina was 12 years old.
She had begun developing adult breasts and had started menstruating around one year
prior. Because Bettina was getting older, Rebecca had suggested to Brad several
months before the investigation that it may be time to stop showering with Bettina.
Rebecca also had expressed discomfort that Bettina had referred to Brad as "my sexy
hubby," a reference to how Rebecca has Brad's contact saved in her phone, though
Rebecca clarified that Bettina understood the phrase only to represent her parents'
11 "[K]nowingly touching, directly or through clothing, the victim's . . .
female breast" meets the statutory definition of "sexual contact."
AS 11.81.900(b)(61)(A)(i).
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relationship.12 Given this other evidence, the superior court did not clearly err in finding
that Brad rubbed Bettina's breasts in the shower.
B. The Superior Court Did Not Violate Brad's Fifth Amendment Rights
In Drawing An Adverse Inference Against Him.
The superior court drew adverse inferences from Brad's refusal to testify:
that sexual contact had occurred, "meaning rubbing his hands on . . . [Bettina's] breasts
while in the shower naked" and that Brad and Bettina "regularly" slept in bed together
naked. Brad argues these inferences were drawn in error and raises two questions:
12 Brad also argues that the superior court violated his First Amendment
rights to free religious exercise when commenting on his and Rebecca's matching
pendants. U.S. Cont. amend. I ("Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof . . ."); Alaska Const.
art. I, § 4 ("No law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof."). The court stated that "it was notable" that Brad and Rebecca
were both wearing necklaces with "very similar" pendants when they were in court
because it was "unusual for people to have outside of their clothing a large chain with
a pendant." But the court did not speculate that the pendants were religious in nature.
In any event, the inference the court drew from the pendants - that Rebecca was "still
very much connected to her husband" - is extraneous to whether the acts described
amount to sexual contact.
Brad further contends that the superior court mistakenly used the word
"abhorrent" instead of "aberrant" when concluding that his conduct with Bettina
showed the other children were also at risk. The significance of the distinction in terms
comes from our case law. In another CINA case involving alleged sexual abuse under
AS 47.10.011(7), we quoted a California decision for the proposition that the father's
"conduct [was] 'so sexually aberrant' to support the common sense conclusion that
most every person in the family home was at risk of sexual abuse." Rowan B., Sr. v.
State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (Rowan I), 320 P.3d 1152,
1158 (Alaska 2014) (quoting In re Ana C., 139 Cal. Rptr. 3d 686, 689 (2012)). Brad's
counsel suggests that the superior court used the wrong term, "abhorrent," due to the
court's "sloppiness" or "cravenness." But the court made no mistake. Although the
transcript uses the word "abhorrent," it is clear from the audio recording of the
adjudication proceeding that the superior court used the correct word, "aberrant." We
suggest to counsel that before impugning a judge's integrity, it is important to make
sure that the charge rests on solid evidence.
-10- 7743
----------------------- Page 11-----------------------
whether an adverse inference can be drawn in a CINA case; and if so, whether there
was sufficient evidentiary context to properly draw an adverse inference in this case.
We first hold that adverse inferences may be drawn from a parent's refusal
to testify in a CINA case. The Fifth Amendment to the U.S. Constitution states that
"[n]o person . . . shall be compelled in any criminal case to be a witness against
himself." When a defendant in a criminal case exercises the right not to testify, no
13
inference of guilt may be drawn.
But "the Fifth Amendment does not forbid adverse inferences against
parties to civil actions when they refuse to testify in response to probative evidence
offered against them."14 And in proper circumstances, "silence in the face of accusation
15
is a relevant fact not barred from evidence by the Due Process Clause."
We held in Nelson v. State that a "privilege assertion as to specific actions
in combination with a factual dispute about those actions may give rise to a permissible
and relevant adverse inference" in civil cases.16 However, we emphasized that the
"strength and cogency of the adverse inference should, of course, be tested against the
other evidence in the case."17 "Evidence of a privilege assertion void of context bears
little to no weight in satisfying a party's evidentiary burden."18 In Nelson , a post-
conviction relief proceeding based on a claim of ineffective assistance of counsel, we
13 Baxter v. Palmigiano, 425 U.S. 308, 317 (1976).
14 Id. at 318; see also Alaska R. Evid. 512(d) (stating that Evidence Rule
512(a)'s prohibition against drawing inferences from claim of privilege "do[es] not
apply in a civil case with respect to the privilege against self-incrimination").
15 Baxter, 425 U.S. at 319.
16 273 P.3d 608, 612 (Alaska 2012).
17 Id. (quoting LiButti v. United States, 107 F.3d 110, 124 (2d Cir. 1997)).
18 Id.
-11- 7743
----------------------- Page 12-----------------------
held an adverse inference from the attorney's refusal to testify had no weight when no
specific evidence of the attorney's alleged incompetence was presented.19
Because a CINA case is not entirely like other civil cases, Brad argues that
Nelson 's holding should not apply. He cites our statement in a CINA case that a parent
20
"should not be penalized for invoking his Fifth Amendment privilege."
But that case, Rowan III,21 did not squarely address the propriety of an
adverse inference. In Rowan III we upheld the superior court's denial of a father's
request to delay termination proceedings pending appeal of his criminal convictions,
explaining that permitting this delay "would drag out the most serious CINA cases to
the detriment of children."22 While we acknowledged the right to invoke the Fifth
Amendment without penalty in a CINA case, we maintained that "[t]he best interests of
children . . . are paramount."23 Balancing the father's privilege against his children's
"interest[s] in timely resolution of the proceedings," we held that the superior court did
24
not abuse its discretion in denying the father's motion for continuance.
Moreover, the passage in Rowan III that Brad cites was based on precedent
that has been limited by more recent decisions. Rowan III relied on Armstrong v.
Tanaka's statement that the Fifth Amendment privilege protects the right of a person to
19 Id. (noting that defendant could have asked judge to "allow question-by-
question examination" that might have focused on specific actions and generated
permissible adverse inferences).
20 Rowan B. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.
(Rowan III), 361 P.3d 910, 914 (Alaska 2015) (quoting Armstrong v. Tanaka , 228 P.3d
79, 84 (Alaska 2010)).
21 Id. Rowan II affirmed the CINA adjudication following Rowan I 's
remand and is not relevant here. Rowan B. v. State, Dep't of Health & Soc. Servs., Off.
of Child.'s Servs., No. S-15107, 2014 WL 4057175 (Aug. 13, 2014).
22 Rowan III, 361 P.3d at 915.
23 Id. at 914.
24 Id. at 914-15 (quoting Tanaka, 228 P.3d at 84-85).
-12- 7743
----------------------- Page 13-----------------------
remain silent without penalty.25 But Tanaka was decided before Nelson , and Nelson
held that it is permissible to draw an adverse inference from invocation of the right to
remain silent in a civil case.26 Therefore, the quoted language from Rowan III does not
control our decision here.
The primary purpose of child protection proceedings is to protect the best
interests of the children.27 That goal is generally served by allowing the court to
consider more information. For that reason we hold that an adverse inference is
permissible in CINA cases.
25 Id. at 914 ("An individual 'should not be penalized for invoking his Fifth
Amendment privilege.' " (quoting Tanaka, 228 P.3d at 84)). ("The unique
characteristics of child custody proceedings do not require alteration or modification of
the rule permitting inferences from a party's failure to testify in a civil case."); In re
C.O., 203 A.3d 870, 882 (N.H. 2019) ("[T]he circuit court may draw an adverse
inference from a parent's failure to acknowledge wrongdoing where it is relevant to
determining whether the parent failed to correct the conditions that led to the findings
of abuse or neglect, even where the parent has invoked her right against self-
incrimination."); In re Destiny D., 922 A.2d 168, 174 (R.I. 2007) ("[I]n the trial of a
petition seeking the termination of parental rights, the Fifth Amendment does not forbid
the drawing of adverse inferences against a party who refuses to testify. In this instance,
the trial justice quite properly considered [plaintiff's] refusal to testify 'in light of all
the other evidence' adduced at trial." (citation omitted) (quoting In re Rosalie H. , 889
A.2d 199, 206 (R.I. 2006))).
26 Nelson v. State, 273 P.3d 608, 612 (Alaska 2012).
27 See, e.g.¸ Rowan III, 361 P.3d at 914 ("The Alaska Statutes and our
precedent establish a clear policy: The best interests of children, including the interest
in permanency as opposed to leaving children in limbo, are paramount."); R.F. v. S.S.,
928 P.2d 1194, 1197 (Alaska 1996) ("In determining whether termination of parental
rights and waiver of consent to adoption are proper, the best interests of the child are
paramount."); A.A. v. State, Dep't of Fam. & Youth Servs. , 982 P.2d 256, 260 (Alaska
1999) ("[I]n a termination trial, the best interests of the child, not those of the parents,
are paramount."); see also AS 47.10.005 ("The provisions of this chapter shall be
liberally construed to . . . promote the child's welfare and the parents' participation in
the upbringing of the child to the fullest extent consistent with the child's best
interests.").
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Our conclusion is consistent with the weight of authority from other
jurisdictions. 28 Brad cites a single case from Maryland, In re T.G.,29 in arguing that
state courts have declined to draw adverse inferences in child welfare proceedings. But
he misreads this case. In In re T.G., the Maryland Court of Special Appeals determined
that a juvenile court had not drawn an adverse inference from the mother's invocation
of the Fifth Amendment and declined to address whether a court may draw an adverse
inference under such circumstances.30 In sum, there is scant legal support for Brad's
position, and we reject it.
Turning to Brad's second argument, we conclude the superior court did
not err in drawing specific inferences from Brad's refusal to testify. The court inferred
that Brad "rubb[ed] his hands on . . . [Bettina's] breasts while in the shower naked" and
that Brad and Bettina "slept or he cuddled with her in the nude naked in bed regularly
[sic]."
These inferences were permissible because evidence of this specific
conduct was presented to the court - in contrast to the Nelson case discussed above.
The court considered Rebecca's statements that Brad and Bettina regularly took lengthy
showers together and that Brad touched Bettina's breasts when washing her. Rebecca
also stated that Brad slept naked and that Bettina commonly slept naked in her parents'
bed as well. While Rebecca did state that Bettina and her other daughter sometimes
needed help washing and conditioning their hair, there was no evidence presented that
Bettina, who was 12 years old, could not otherwise wash herself. For example, no
28 See, e.g., Melissa W. v. Dep't of Child Safety, 357 P.3d 150, 152 (Ariz.
App. 2015) ("A juvenile court's drawing a negative inference when a parent fails to
testify at a severance hearing is particularly appropriate."); Custody of Two Minors, 487
N.E.2d 1358, 1363 (Mass. 1986)
29 No. 864, 2019 WL 6769611, at *15 (Md. Spec. App. Dec. 12, 2019).
30 Id. at *7 n.7.
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evidence was presented that Bettina had an injury or a disability that would have
required Brad to help her wash her body.
OCS called Brad to testify. However, Brad's attorney advised that Brad
was invoking his right to remain silent under the Fifth Amendment and asserting a
blanket privilege against any questions related to the subject of the criminal charges
against him. Given the evidence of Brad's actions before the superior court, we
conclude that the court's adverse inference from Brad's silence in the face of the
evidence raised against him was not error.
C. Brad's Conduct Cannot Be Reasonably Construed To Be "Normal
Caretaker Responsibilities For A Child, Interaction With A Child, Or
Affection For A Child."
In addition to challenging the superior court's factual findings, Brad
argues that the evidence in the record did not establish that the children were in need of
aid. A court may find a child to be in need of aid due to, among other reasons, "sexual
abuse . . . as a result of conduct by or conditions created by the child's parent."31 Sexual
abuse means "sexual penetration" or "sexual contact."32 Sexual contact includes "the
defendant's knowingly touching, directly or through clothing, the victim's genitals,
anus, or female breast."33 However, sexual contact does not include acts "that may
reasonably be construed to be normal caretaker responsibilities for a child, interactions
34
with a child, or affection for a child."
31 AS 47.10.011(7).
32 AS 47.10.990(33) (" ' [S]exual abuse' means the conduct described in
AS 11.41.410-11.41.460."); AS 11.41.434(a)(2) (defining sexual abuse of a minor in
the first degree as when victim's natural parent engages in "sexual penetration" with
victim); AS 11.41.436(a)(3) (defining sexual abuse of a minor in the second degree as
when victim's natural parent engages in "sexual contact" with victim).
33 AS 11.81.900(b)(61)(A)(i).
34 AS 11.81.900(b)(61)(B)(i).
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Under AS 47.10.019, a court "may not find a minor to be a child in need
of aid . . . solely on the basis that the child's family is poor, lacks adequate housing, or
exhibits a lifestyle that is different from the generally accepted lifestyle standard of the
community where the family lives." However, this limitation "may not be construed to
prevent a court from finding that a child is in need of aid" if the child has been subject
35
to sexual abuse.
Whether conduct meets the definition of "sexual contact" is a legal
question that we review de novo.36 We affirm the superior court's conclusion that
Brad's conduct did not fall under the "normal caretaker," "interaction," or "affection"
37
exceptions to the definition.
Contrary to Brad's assertion, the evidence before the superior court was
not simply that Brad washed his child, cuddled with her in bed, or spent time in the
shower speaking to her. Regularly taking lengthy showers with a 12-year-old child and
washing that child's breasts when she is well beyond the age at which she can do so
herself is not normal caretaking, interaction, or affection. As noted above, there were
no special circumstances that might have justified Brad's actions, such as an injury or
developmental disability that might have called for caretaking of this nature.
Other evidence supports the conclusion that Brad's conduct cannot
reasonably be construed as normal caretaking or affection. By the time Bettina's
brothers reached her age, they had stopped showering with their father. Rebecca herself
had suggested to Brad that he should stop showering with Bettina because she "[didn't]
know if [Bettina] ever would've thought that it was weird" and that she "just didn't
want to get to 16, 17 [years old]." Moreover, when asked whether Bettina had ever
35 AS 47.10.019.
36 See S.H. v. State, Dep't of Health & Soc. Servs., Div. of Fam. & Youth
Servs., 42 P.3d 1119, 1122-23 (Alaska 2002).
37 See AS 11.81.900(b)(61)(B)(i).
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made any comments that worried or concerned her, Rebecca stated that Bettina
sometimes referred to Brad as "my sexy hubby," although she immediately downplayed
the significance of these comments. Rebecca's expert testified that Rebecca had
"normalized inappropriate sexual boundaries," and an OCS worker confirmed that
Bettina did not need help showering.
Although a child may not be found in need of aid based on "a lifestyle that
is different from the generally accepted lifestyle standard of the community where the
family lives," Brad's washing of Bettina's breasts in these circumstances is not just a
"lifestyle."38 The statutory "lifestyle" limitation "may not be construed to prevent a
court from finding that a child is in need of aid if the child has been subject to conduct
39
or conditions described in AS 47.10.011-47.10.015," which includes sexual abuse.
And for the reasons we explained, Brad's conduct cannot reasonably be construed as
40
normal caretaking, interaction, or affection.
D. Because We Affirm The Adjudication Order Based On Sexual Abuse,
We Do Not Address The Remainder Of Brad's Arguments.
We need not decide a number of the arguments Brad raises. First, we do
not address the argument about whether a finding of risk regarding one child supports
a finding of risk to all.41 We review the adjudication finding even though it is moot,
because it may have collateral consequences for Brad.42 For purposes of the collateral
38 AS 47.10.019.
39 AS 47.10.011(7); AS 47.10.019.
40 Our conclusion does not rely on findings that Brad slept naked and that
sometimes his children would crawl into bed with the parents and also sleep naked.
This behavior, without more, can reasonably be construed as normal caretaking or
interaction with a child.
41 See Rowan I, 320 P.3d 1152, 1158 (Alaska 2014) (holding that "when a
trial court finds a parent has sexually abused one child in the household, the court may
presume that the other children in the household are at substantial risk of sexual abuse").
42 See supra note 10.
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consequences doctrine, it matters only whether a single child has been adjudicated in
need of aid due to a parent's conduct.43 Brad has not argued that there are distinct
collateral consequences that flow from adjudications of multiple children. We therefore
do not address this argument.
Next, we decline to address the court's finding that the children were in
need of aid due to neglect. Only one ground under AS 47.10.011 is necessary to sustain
44
an order adjudicating a child in need of aid.
Finally, we do not address arguments related to whether Rebecca was an
"offending parent," because she has not pursued an appeal of the adjudication as to her
conduct.
CONCLUSION
We AFFIRM the superior court's order adjudicating Bettina as a child in
need of aid.
43 See Reed S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
522 P.3d 182, 188 (Alaska 2022) (applying collateral consequences doctrine when
single child was adjudicated in need of aid).
44 Id. at 194; see AS 47.10.011 ("[T]he court may find a child to be a child
in need of aid if it finds by a preponderance of the evidence that the child has been
subjected to any of the following . . ." (emphasis added)).
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CARNEY, Justice, concurring.
I agree that Brad and Rebecca's children were appropriately found to be
in need of aid, but I write separately to point out what I believe was a clear error.
The court holds that there is no clear error where the superior court found
that Brad "sometimes may have had" an erection in the shower with Bettina.1 We
conclude that this inference was appropriately based on Rebecca's testimony that he
walked around the house with an erection, and on Rebecca's and others' descriptions
of sexual contact during the lengthy showers.2 We specifically base our conclusion
there on the fact that "the court did not actually make a factual finding that Brad had an
3
erection" in the shower.
In contrast, the superior court did "actually make a factual finding that
Brad had [] erection[s]" while in bed with Bettina.4 Reaching this conclusion requires
an additional inference beyond that required to infer that Brad "may have had" an
erection in the shower with his daughter. It requires that we infer that in addition to
getting erections when he is awake and walking around, he gets them when asleep, and
specifically when he is sleeping with Bettina (rather than simply when sleeping).
I believe that it was clear error to find that Brad did have erections while
in bed with Bettina. But in light of all the other evidence supporting a finding that the
children were in need of aid due to sexual abuse, that error is harmless.
1 Opinion at 8.
2 Id. at 8-9.
3 Id. at 8.
4 See id.
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