| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. ITMO Protective Proceedings of Macon J. (3/14/2025) sp-7753
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
In the Matter of the Protective )
Proceedings of ) Supreme Court No. S-18920
)
MACON J. (Minor). ) Superior Court No. 1KE-22-00171 PR
)
) O P I N I O N
)
) No. 7753 - March 14, 2025
)
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Ketchikan, Daniel Doty, Judge.
Appearances: Chris Peloso, The Law Offices of Chris
Peloso, Juneau, for Appellant. Robert Kutchin, Assistant
Attorney General, Anchorage, and Treg R. Taylor, Attorney
General, Juneau, for Appellee. Vance A. Sanders, Sanders
Poulson Woodford, LLC, Juneau, for Guardian.
Before: Maassen, Chief Justice, and Carney, Borghesan, and
Henderson, Justices. [Pate, Justice, not participating.]
MAASSEN, Chief Justice.
INTRODUCTION
The foster parent of a child adjudicated in need of aid petitioned for
guardianship of the child, and the child's father opposed the petition. Following an
evidentiary hearing, the superior court granted the petition, appointing the foster parent
as the child's guardian. The father appealed.
----------------------- Page 2-----------------------
On the parties' joint motion, we remanded the case to the superior court
with instructions that it "(1) hear the guardianship petition as part of the [Child in Need
of Aid (CINA)] matter and (2) make all factual findings required by [the Indian Child
Welfare Act (ICWA)]," specifically whether the Office of Children's Services (OCS)
had made active efforts to prevent the breakup of the family.
On remand the superior court made additional findings on the existing
record and reaffirmed its order appointing the guardian. The father again appeals. He
argues that the appointment of a guardian is a de facto termination of parental rights
and therefore requires findings and procedural steps that the superior court proceedings
on remand lacked. We conclude, however, that the superior court did not clearly err or
abuse its discretion in its proceedings on remand, and we therefore affirm its order
appointing the guardian.
FACTS AND PROCEEDINGS
A. Facts
Kaleb J. is the father of Macon J., born in 2010.1 Macon is a member of
his mother's tribe; Kaleb is not a tribal member. During early childhood Macon lived
with his mother, who is not involved in this appeal. Kaleb testified that he co-parented
until the child was about six, but at some point thereafter he left Alaska and did not
return to Ketchikan until 2022.
OCS took custody of Macon in 2019, when he was eight years old,
initiating a CINA proceeding because of reports of domestic violence and drug abuse
in Macon's mother's home. Kaleb was living in Phoenix, Arizona at the time. He
alleges that OCS failed to contact him when the CINA case began, and he therefore did
not get involved until eight months to a year after OCS took custody of Macon.
1 We use pseudonyms to protect the parties' privacy.
-2- 7753
----------------------- Page 3-----------------------
Once OCS had made contact with Kaleb, it attempted to place Macon with
him in Arizona. It began the process outlined in the Interstate Compact on the
Placement of Children (ICPC),2 which in this case meant having Arizona conduct a
home study. Once the study was complete, Arizona recommended against placing
Macon with Kaleb. Consequently, OCS facilitated contact and visitation instead
(though Kaleb disputes the extent of these efforts).
Macon was placed with Kara S. in 2020. Kara is Macon's mother's first
cousin, a tribal member, and the guardian of Macon's half-siblings.
B. Proceedings
In November 2022 Kara petitioned for appointment as Macon's guardian.
By that time Macon had been in OCS custody for 44 months and in Kara's care for
about two years.
Kaleb moved to dismiss the petition, arguing that "this guardianship
matter should be dismissed as a separate proceeding and consolidated with the related
CINA matter" because "the appointment of a guardian would effectively circumvent
the requirements for termination of parental rights in the CINA proceeding." The
superior court - the same judge presiding over both the guardianship and ongoing
CINA cases - denied Kaleb's motion. It concluded that guardianship proceedings do
not require or result in the termination of parental rights and can proceed independently
of a CINA proceeding.
The guardianship hearing took place over three days in February and
March 2023. Five witnesses testified: Kara, the proposed guardian; the assigned OCS
caseworker; an expert in child welfare and ICWA; a tribal cultural expert; and Kaleb.
Following the hearing, the court granted the petition appointing Kara as Macon's
2 See AS 47.70.010 (describing agreement among "party states to cooperate
with each other in the interstate placement of children" to help ensure safety and
suitability of out-of-state placements).
-3- 7753
----------------------- Page 4-----------------------
guardian. It found that guardianship was in Macon's best interests and, as required by
ICWA, that there was clear and convincing evidence that returning Macon to his
3
parents' care was likely to result in "serious emotional damage."
Kaleb appealed the guardianship appointment order to this court. Before
briefing, the parties jointly moved for a remand to the superior court to address what
they agreed were errors: (1) "the guardianship matter was not heard, in all respects, 'as
part of ' the pending CINA matter even though they involved the same child"; and (2)
"the guardianship order [did] not address certain factual findings required by ICWA."
We granted the joint motion, remanding to the superior court with instructions to "(1)
hear the guardianship petition as part of the CINA matter and (2) make all factual
findings required by ICWA," specifically whether OCS had made active efforts to
4
prevent the breakup of the family.
The superior court invited the parties to brief "what actions if any should
be taken now that this case has been remanded." OCS moved to formally consolidate
the CINA and guardianship cases to resolve the first alleged error. It also suggested
that the court should reopen the record and set another hearing to address OCS's active
efforts. Kaleb argued that the court had to first "find that all of the requirements for a
termination of parental rights under ICWA and CINA statutes have been met before
considering whether to grant a guardianship." (Emphasis in original.)
The superior court agreed that its initial guardianship order was deficient
because it lacked active efforts findings, but it disagreed with the parties' suggestions
about how to proceed. The court explained that while "[t]he manner in which the Court
consolidated the two cases may not have been best practice," the CINA and
guardianship proceedings were "adequately consolidated in all material respects." It
3 25 U.S.C. § 1912(e).
4 See id. § 1912(d).
-4- 7753
----------------------- Page 5-----------------------
found that its failure to explicitly state that it considered the cases together did not
prejudice any of the parties. It further explained that reopening the proceedings and
taking new evidence "would only be necessary if the Court had prevented any party
from presenting evidence on that point at the contested hearing," which it had not.
Therefore, rather than reopening the record, it held that each party was entitled to
present a closing argument on active efforts based on the evidence already admitted.
Following closing arguments, the court reaffirmed Kara's appointment as
Macon's guardian. It reiterated its previous findings on best interests and the likelihood
of serious emotional or physical damage to Macon if he was returned to his parents'
care, and it found in addition that OCS had satisfied the active efforts requirement at
the time the original appointment was made. Kaleb appeals.
STANDARD 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."5 Clear error exists "only when a
review of the entire record leaves us with a definite and firm conviction that the superior
court has made a mistake."6 "Conflicting evidence is generally not sufficient to
overturn a trial court's factual findings, and we will not reweigh evidence when the
7
record provides clear support for a trial court's ruling."
5 Jude M. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
394 P.3d 543, 550 (Alaska 2017) (internal quotation marks omitted) (quoting Emma D.
v. State, Dep 't of Health & Soc. Servs., Off. of Child.'s Servs., 322 P.3d 842, 849
(Alaska 2014)).
6 Id. (internal quotation marks omitted) (quoting David S. v. State, Dep 't of
Health & Soc. Servs., Off. of Child.'s Servs., 270 P.3d 767, 774 (Alaska 2012)).
7 Emma D., 322 P.3d at 849 (quoting Chloe O. v. State, Dep't of Health &
Soc. Servs. Off. of Child.'s Servs., 309 P.3d 850, 855 (Alaska 2013)).
-5- 7753
----------------------- Page 6-----------------------
"Whether a trial court's findings are consistent with the child in need of
aid or other applicable statutes is a question of law that we review de novo."8 Statutory
interpretation, including the meaning of statutory terms, also presents questions of law
"for which we adopt the rule of law that is most persuasive in light of precedent, reason,
9
and policy."
Whether OCS complied with ICWA's active efforts requirement "is a
mixed question of law and fact."10 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 of fact for clear error."11 A superior court abuses its discretion
in appointing a guardian "if it considers improper factors, fails to consider statutorily
12
mandated factors, or assigns too much weight to some factors."
DISCUSSION
Alaska Statute 13.26.132 authorizes the 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." When OCS takes custody of a child in need of
aid, the parent's rights of custody are suspended, and the court is thus authorized to
13
establish a guardianship pursuant to the statute.
8 Jude M. , 394 P.3d at 550 (internal quotation marks omitted) (quoting
Tessa M. v. State, Dep 't of Health & Soc. Servs., Off. of Child.'s Servs., 182 P.3d 1110,
1114 (Alaska 2008)).
9 Id. (internal quotation marks omitted) (quoting Tessa M., 182 P.3d at
1114).
10 Id. (quoting Maisy W. v. State, Dep 't of Health & Soc. Servs., Off. of
Child.'s Servs., 175 P.3d 1263, 1267 (Alaska 2008)).
11 Id. (citing In re M.K., 278 P.3d 876, 880-81 (Alaska 2012)).
12 Id. (quoting In re M.K., 278 P.3d at 881).
13 Id. at 551-52.
-6- 7753
----------------------- Page 7-----------------------
Minor guardianships under AS 13.26.132 are probate proceedings.14 But
guardianship appointments are also authorized by the CINA statutes, specifically
AS 47.10.110.15 When someone petitions for the guardianship of a child who is also
the subject of an ongoing CINA proceeding, as Macon was here, "any attempts to
appoint a guardian - whether filed pursuant to AS 47.10.110 or AS 13.26.[101-. 186]
- must be considered and treated, in all respects, as part of the original CINA case."16
ICWA also applies to guardianship proceedings involving Indian children.
ICWA establishes "minimum Federal standards for the removal of Indian children from
their families and the placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture."17 Certain findings are required before an
Indian child may be placed in foster care.18 The Bureau of Indian Affairs has confirmed
that ICWA "applies to placements with a guardian or conservator, because ICWA
14 See AS 13.26.132, .147.
15 The statute provides: "When, in the course of a proceeding under this
chapter, it appears to the court that the welfare of a minor will be promoted by the
appointment of a guardian or custodian of the minor's person, the court may make the
appointment." See also Terry S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., 168 P.3d 489, 492 & n.2 (Alaska 2007) (citing AS 47.10.110).
16 Terry S., 168 P.3d at 495; AS 47.10.111(a) ("[I]f a person seeks adoption
or appointment as legal guardian of a child in state custody under this chapter, the court
shall hear the adoption or guardianship proceedings as part of the child-in-need-of-aid
proceedings relating to the child.").
17 25 U.S.C. § 1902. ICWA defines an "Indian child" as "any unmarried
person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological child of a member of an
Indian tribe." Id. § 1903(4).
18 Id. § 1912(d)-(e).
-7- 7753
----------------------- Page 8-----------------------
includes guardianships in the definition of 'foster care placement.' "19 Accordingly,
Alaska's Probate Rules governing minor guardianships provide that "[i]n all cases
involving an Indian child, the statutory provisions of 25 U.S.C. 1901 et seq., and the
ICWA regulations . . . shall apply."20 Because Macon is a tribal member, ICWA applies
to this guardianship proceeding; the parties do not dispute its applicability.
A. The Superior Court Made The Factual Findings Necessary To The
Appointment Of A Guardian For An Indian Child.
The superior court may appoint a guardian if all parental rights of custody
have been terminated or suspended. 21 To support the appointment, ICWA additionally
requires the superior court to find: (1) that all parental rights of custody have been
terminated or suspended; (2) "by clear and convincing evidence 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 unsuccessful ' ";22
(3) "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
19 OFF. OF THE ASSISTANT SEC 'Y - INDIAN AFFS., U.S. DEP 'T OF THE
INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE ACT 14
(2016), https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-
056831.pdf.; see also 25 U.S.C. § 1903(1)(i) (" '[C]hild custody proceeding' shall mean
and include - (i) 'foster care placement' which shall mean any action removing an
Indian child from its parent or Indian custodian for temporary placement in a foster
home or institution or the home of a guardian or conservator where the parent or Indian
custodian cannot have the child returned upon demand, but where parental rights have
not been terminated.").
20 Alaska R. Prob. P. 15(f).
21 AS 13.26.132.
22 Jude M. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
394 P.3d 543, 554 (Alaska 2017) (first quoting 25 U.S.C. § 1912(d); and then citing
CINA Rule 18(c)(2)(B) (establishing a clear and convincing standard for active efforts
in termination proceedings)).
-8- 7753
----------------------- Page 9-----------------------
physical damage to the child' ";23 and (4) "by a preponderance of the evidence that the
appointment of a guardian is in the child's best interests."24
Kaleb argues that the last three of these necessary findings are identical to
those required under AS 47.10.088 for the termination of parental rights in a CINA
proceeding. From this premise he argues that because the appointment of a guardian is
the functional equivalent of a termination of parental rights, ICWA requires the court
in a guardianship proceeding to find that the likelihood of harm to the child is proven
beyond a reasonable doubt, the higher evidentiary standard that applies in termination
proceedings.25
But this argument is simply mistaken. As noted above, a guardianship
proceeding is a "foster care placement" under ICWA,26 and ICWA applies a "clear and
convincing evidence" standard to foster care placements.27 In Jude M. we explicitly
rejected the argument Kaleb makes here: that guardianships are de facto terminations
of parental rights and thus require a higher standard of proof under ICWA.28 It is true
that guardianships modify parent-child relationships, as a guardian assumes "the
23 Id. (quoting 25 U.S.C. § 1912(e)).
24 Id.
25 25 U.S.C. § 1912(f).
26 U.S. DEP 'T OF THE INTERIOR, supra note 19, at 14; see also Jude M. , 394
P.3d at 553 ("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." (quoting Terry S. v. State, Dep't of Health &
Soc. Servs., Off. of Child.'s Servs., 168 P.3d 489, 496 (Alaska 2007)).)
27 Compare 25 U.S.C. § 1912(d), (e), with 25 U.S.C. § 1912(f).
28 394 P.3d at 553 (explaining that "the fact that the guardianship modified
Jude's legal rights is not enough to make it a 'termination' under federal law").
-9- 7753
----------------------- Page 10-----------------------
powers and responsibilities of a parent."29 But a parent whose rights have not been
terminated retains "residual rights and responsibilities,"30 including the right to petition
for the guardian's removal.31 This is notably different from a termination of "the rights
and responsibilities of the parent regarding the child," which "free[s] a child for
32
adoption or other permanent placement."
Kaleb also argues that the court did not make the findings ICWA requires
to support a guardianship. But he concedes that the court made findings related to the
likelihood of serious physical or emotional damage.33 He also concedes that the court
"retroactively addressed" the active efforts factor on remand.34 He contends, however,
that the court's findings related to the "best interests" factor35 were "pretextual,"
because the court "stat[ed] that a guardianship would be in [Macon's] best interest
solely on the basis that he was doing well in foster care." But Kaleb does not explain
why this finding should be viewed as pretextual, and we see no clear error.
In the similar context of guardianships for incapacitated persons, we have
held that the "best interests determination [requires] the court to take into account the
closeness of the ward's relationships to the existing and prospective guardians and
29 Id. ; AS 47.10.084(a); AS 13.26.167.
30 AS 47.10.084(c).
31 AS 13.26.186.
32 AS 47.10.088(a).
33 See 25 U.S.C. § 1912(e).
34 See id. § 1912(d).
35 See Jude M. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
394 P.3d 543, 554 n.55 (Alaska 2017).
-10- 7753
----------------------- Page 11-----------------------
conservators."36 And "if a change would likely affect the ward's physical placement,"
also relevant would be "the extent to which the ward has formed relationships with
37
caregivers or others in the ward's present living arrangement."
The court's findings here reflect similar considerations. In its initial
appointment order the court found that Macon had "been living with [Kara] for a long
time. They have a strong bond, and he is thriving in her care." It reiterated this finding
in its order on remand, adding that Macon had "lived with [Kara] for two years before
she was appointed as guardian" and that "[h]e was doing well in her care and had gotten
close to her and her children." These findings are sufficiently detailed for purposes of
our review38 and well supported by the hearing testimony; Kaleb does not appear to
challenge their accuracy. We conclude that the court made the factual findings
necessary to support its decision to grant the guardianship petition.
B. In Considering The Guardianship Petition, The Superior Court Was
Not Required To Consider All The Evidence In The Ongoing CINA
Proceeding.
Alaska Statute 47.10.111(a) requires that guardianship proceedings for a
child in OCS custody be heard "as part of the child-in-need-of-aid proceedings relating
to the child." "The legislature enacted this statute in order to require a 'one judge, one
child, one family' approach to children's cases mandating that all the hearings would
36 In re M.K., 278 P.3d 876, 884 (Alaska 2012) (quoting H.C.S. v. Cmty.
Advoc. Project of Alaska, Inc. ex rel. H.L.S., 42 P.3d 1093, 1099 (Alaska 2002))
(considering best interests of incapacitated person when evaluating petition for
appointment of guardian).
37 Id. (quoting H.C.S., 42 P.3d at 1100).
38 See id. at 885 ("We have held that the superior court 's 'findings need not
be extensive, but must either give us a clear indication of the factors which the superior
court considered important in exercising its discretion or allow us to glean from the
record what considerations were involved.' " (quoting Bird v. Starkey, 914 P.2d 1246,
1249 n.4 (Alaska 1996))).
-11- 7753
----------------------- Page 12-----------------------
be held before the judge assigned to the CINA case."39 But what does it mean for a
guardianship proceeding to be heard "as part of" the child's CINA proceedings?
According to Kaleb, it means that all the evidence from the CINA proceeding must be
considered in the guardianship proceeding as well. We disagree.
Because of the sensitive subject matter, only necessary parties are
involved in a CINA case: "the child, the parents, the guardian, the guardian ad litem,
the Department, an Indian custodian who has intervened, an Indian child 's tribe which
40
has intervened, and any other person who has been allowed to intervene by the court."
By contrast, "any adult" may seek guardianship of a minor; although an appointed
guardian is a party to a CINA case, a guardianship petition does not elevate the
41
petitioner to party status in the CINA case.
A guardianship proceeding thus exists within, but slightly apart from, an
ongoing CINA case involving the same child. The single court overseeing both, under
the "one judge, one child, one family" policy, must recognize that the outcome of each
proceeding affects the other,42 but the proceedings nonetheless remain distinct and do
not have to be formally consolidated. Guardianship proceedings are not necessary to
39 Tara R. v. State. Dep 't of Fam. & Cmty. Servs., Off. of Child.'s Servs., 541
P.3d 530, 541 (Alaska 2024).
40 CINA Rule 2(l).
41 AS 13.26.143; AS 47.10.111(d) (providing that petitioners for
guardianship "may only participate in proceedings under this chapter that concern the
person's petition").
42 Guardianship may be part of a court-approved permanency plan for a child
in OCS custody; a court will not consider a petition for guardianship of a child in OCS
custody until after such a plan is approved. See AS 47.10.111(b). Once a court appoints
a guardian, that "guardianship status continues until terminated," AS 13.26.101, and it
is the guardian, not OCS, who has legal custody of the child. AS 47.10.084(a) ("When
a child is . . . released under AS 47.10.080(c)(2) to the child 's . . . guardian . . . a
relationship of legal custody exists.").
-12- 7753
----------------------- Page 13-----------------------
every CINA case, and they may result in the appointment of someone who is not a party
to the CINA case.
We agree with the trial court's self-assessment on remand that "[t]he
manner in which [it] consolidated the two cases may not have been best practice, but
the CINA and probate proceedings were adequately consolidated in all material
respects." The record supports this view. Kara timely filed for appointment as Macon's
guardian in November 2022 after the permanency plan in the CINA case listed
guardianship as a goal. At the next CINA permanency hearing, held before a magistrate
judge, OCS asked the court to consider "the permanency and extension [of custody]
and the guardianship all together [in one proceeding] because the evidence is the same.
If the guardianship is granted, it makes the other issues moot as well." Kaleb's attorney
agreed to proceeding in this way, as did the other parties to the CINA case. The
magistrate judge said she would calendar further CINA proceedings and the
guardianship "for [the] same time in front of [the same judge]." At that subsequent
hearing, accordingly, the superior court took evidence on the guardianship petition and
implicitly accepted Kara's position that because guardianship was a permanency goal,
no further permanency proceedings would be necessary if the guardianship petition was
granted.
Because a guardianship proceeding is not formally consolidated with the
associated CINA case, the records of the two cases do not automatically merge. And
there is no requirement that the guardianship findings required by AS 13.26.147 and
ICWA be supported by the evidence adduced in the CINA case.43 Such evidence may
43 See Amy S. v. State, Dep 't of Health & Soc. Servs., Off. of Child.'s Servs.,
440 P.3d 273, 280 (Alaska 2019) (holding that in requiring requests to modify custody
of or visitation with minor child in OCS custody to be heard "as part of" that child's
CINA proceeding, "[t]here is no indication that the legislature intended to reduce or
change applicable burdens of proof . . . or to change the types of evidence that courts
must consider").
-13- 7753
----------------------- Page 14-----------------------
well be relevant to the guardianship petition, but it still needs to be formally introduced
in the guardianship proceeding before the judge may consider it.44 Kaleb is a party to
the CINA case and has access to the evidence adduced there. He attended the
guardianship proceeding, was represented by counsel, testified, and elicited testimony
from others, some of it about the CINA proceeding. He had the opportunity during
three days of hearing to present evidence that had been earlier adduced in the CINA
case if he thought it was relevant. But he never attempted to do so, and even on appeal
he does not identify any evidence from the CINA case that would have made a
45
difference to the superior court's decision to grant the guardianship petition.
44 See Diego K. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., 411 P.3d 622, 628 (Alaska 2018) ("[W]hen the focus of [a CINA status] hearing
shifts to matters requiring the court to make specific factual findings and legal
conclusions - such as whether probable cause exists to award temporary custody of a
child to OCS, whether reasonable or active efforts were made, or any of the other
specific findings required by state and federal law - then the court's decision must be
based only upon evidence admitted pursuant to legal rules.").
45 Cf. Snider v. Snider, 357 P.3d 1180, 1186-87 (Alaska 2015) (holding that
it was an abuse of discretion to deny request to reopen evidence, as proffered evidence
"could make a difference to the superior court's decision"); A.C.E. Constr., Inc. v.
Chena Constr. Corp., 647 P.2d 602, 604 (Alaska 1982) (reversing superior court's
denial of motion to reopen evidence because proffered evidence would have decisively
resolved one of the main questions on appeal).
In his opening brief on appeal, Kaleb cites the superior court's failure to
"permit[] the parties to present evidence from the CINA matter in the evidentiary
hearing held as part of the guardianship matter." But he does not identify any specific
evidence or cite to any point in the record where he attempted to present it and was
denied the opportunity. In declining to reopen the record on remand, the superior court
observed that such a step "would only be necessary if the Court had prevented any party
from presenting evidence on [active efforts] at the contested hearing," but it "never
prohibited a party the opportunity to do so." Kaleb points to nothing in the record that
would contradict the court's statement.
-14- 7753
----------------------- Page 15-----------------------
In sum, we see no error or abuse of discretion in the superior court's
consideration of the guardianship petition as a separate proceeding with its own
evidentiary record.
C. Parental Rights Do Not Have To Be Terminated Before A Guardian
Is Appointed.
Kaleb's arguments are largely premised on his assumption that the
appointment of a guardian for a child in OCS custody operates as a de facto termination
of parental rights, meaning that all the protections attendant upon a termination are
necessary. He asks us to clarify that following Jude M. , "the issue of guardianship can
only be taken up after the court takes sufficient evidence to make findings in a parental
termination trial." (Emphasis in original.)
Kaleb misreads Jude M. The guardian in Jude M. was appointed after two
termination trials, and the superior court evaluated OCS's alternative petition for
guardianship only once the petition to terminate parental rights had been denied.46 But
47
termination trials are not a threshold requirement for guardianship proceedings.
While termination of parental rights does authorize the court to establish a guardianship
under AS 13.26.045, so too does suspension of those rights.48 In Jude M. we held that
because adjudication of a child in need of aid suspends custodial rights, the court may
46 Jude M. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
394 P.3d 543, 549-50 (Alaska 2017).
47 Cf. Dena M. v. State, Dep 't of Health & Soc. Servs., Off. of Child.'s Servs.,
442 P.3d 755, 762-63 (Alaska 2019) (holding that although guardianship may be
considered as alternative to termination of parental rights, trial court is not required to
consider whether guardianship is in child's best interests before terminating parental
rights).
48 AS 13.26.132 ("The court may appoint a guardian for an unmarried minor
if all parental rights of custody have been terminated or suspended by circumstances or
prior court order.").
-15- 7753
----------------------- Page 16-----------------------
then appoint a guardian regardless of whether there has been an attempted termination
49
of parental rights.
Kaleb further argues that our opinion in In re Baron W. ,50 which
established the standard for removing a minor's guardian, makes all minor
guardianships de facto terminations of parental rights. He argues that as long as the
guardian provides adequate care, it would be impossible for a parent in a CINA case to
carry the burden of proving that the guardian's removal is warranted. This
interpretation overstates our holding in Baron W.
In Baron W. we held that that "[t]o remove the guardian of a minor, a
petitioner must first show that the circumstances of the ward or guardian have changed
materially since the guardian was appointed, and the court must then determine
[whether] the existing appointment is in the ward's best interests."51 Kaleb reads this
to mean that only material changes in the guardian/ward relationship will justify the
guardian's removal - not material changes in the parent's life, such as rectifying the
conditions that made the child a child in need of aid.
49 394 P.3d at 551-52.
50 498 P.3d 1045 (Alaska 2021).
51 Id. at 1053 (interpreting AS 13.26.186, statute governing removal of a
guardian of a minor). This is the same standard used to remove guardians of
incapacitated persons, which was itself adopted from the standard for modifying child
custody awards. Id. at 1052; H.C.S. v. Cmty. Advoc. Project of Alaska, Inc. ex rel.
H.L.S., 42 P.3d 1093, 1099-1100 (Alaska 2002). The bracketed alteration in Baron 's
text ("whether" instead of "that") follows H.C.S. 's statement of the second step in the
analysis: "Once the petitioner demonstrates changed circumstances, the court must
decide whether the existing appointment is in the ward's best interests." H.C.S., 42
P.3d at 1099.
-16- 7753
----------------------- Page 17-----------------------
Whether circumstances have materially changed is a fact-specific
determination.52 In the similar contexts of child custody modification and removal of
guardians for incapacitated persons, we have held that changes in a parent's ability to
provide care for a child can constitute materially changed circumstances,53 as long as
the change is long-term and significant.54 A change in a parent's ability to care for a
child may mean a change to the child's circumstances as well due to the renewed
52 While we have not yet interpreted this requirement in the context of
guardianship for minors, we have interpreted it in cases considering the removal of
guardians for incapacitated persons or modification of custody awards. In Baron W.,
we adopted the standard for removal of guardians of minors directly from these cases,
and interpretation of changed circumstances in those contexts is therefore instructive
here. Baron W., 498 P.3d at 1052-53; see, e.g., In re Tiffany O., 467 P.3d 1076, 1080-
81 (Alaska 2020) (affirming finding of changed circumstances for removal of guardian
of incapacitated person where guardian's beliefs and behavior interfered with ward's
needs being met); Abby D. v. Sue Y. , 378 P.3d 388, 394-98 (Alaska 2016) (holding that
mother's mental health assessment, four months of sobriety, new spouse, and new job
were short-term changes that did not constitute materially changed circumstances for
purposes of custody modification).
53 Cf., e.g., Fredrickson v. Hackett, 407 P.3d 480, 484 (Alaska 2017) ("[The
father's] circumstance - his ability to provide living conditions suitable for children
- substantially changed when [the father's] previous tenant left and [he] moved into
his cabin and enlarged it to provide suitable housing for the children."); Nichols v.
Mandelin , 790 P.2d 1367, 1372 (Alaska 1990) ("There is evidence in the record
regarding [the mother's] overall maturation, her changed marital status, her full time
employment since 1982, and her sustained control of a former drinking problem. We
hold that in the aggregate, these factors constitute a substantial change in
circumstances." (footnotes omitted)).
54 See, e.g., Abby D. , 378 P.3d at 394-98 (holding that short-term changes in
mother's life did not show substantial change necessary to modify custody); Gratrix v.
Gratrix, 652 P.2d 76, 83 (Alaska 1982) ("[M]ere improvement in the position of one of
the parties is not sufficient to justify a change in custody. [The father's] recent
remarriage and abstention from drinking were not proper grounds upon which to base
a change of custody, especially given the short duration of this improved lifestyle."
(citation omitted)).
-17- 7753
----------------------- Page 18-----------------------
possibility of family reunification. Baron W. does not prevent a parent from making
that argument successfully.
The superior court did not err by appointing a guardian even though
parental rights had not been terminated, and the appointment did not act as a de facto
termination of Kaleb's parental rights.
CONCLUSION
We AFFIRM the superior court's order appointing Kara as Macon's
guardian.
-18- 7753
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
