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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Laura J. O達rien v. Francis X. Delaplain, Kassandra Spencer, Kenneth M. O達rien, Willis A. Ehlers, and the Central Council of Tlingit and Haida Indian Tribes of Alaska (9/27/2024) sp-7723
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
LAURA J. O'BRIEN, )
) Supreme Court No. S-18217
Appellant, )
) Superior Court Nos. 1JU-10-00742 CI,
v. ) 1JU-19-00944 CI
)
FRANCIS X. DELAPLAIN, ) O P I N I O N
KASSANDRA SPENCER, KENNETH )
M. O'BRIEN, WILLIS A. EHLERS, ) No. 7723 - September 27, 2024
and CENTRAL COUNCIL OF )
TLINGIT AND HAIDA INDIAN )
TRIBES OF ALASKA, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Ian Gerard van Tets, Van Tets Legal Services,
Anchorage, for Appellant. Notice of nonparticipation filed
by Blake F. Quackenbush, Law Offices of Blake Fulton
Quackenbush, Anchorage, for Appellees Francis X.
Delaplain and Kassandra Spencer. Notice of
nonparticipation filed by Holly Handler, Juneau, for
Appellee Central Council of Tlingit and Haida Indian Tribes
of Alaska. No appearance by Appellees Kenneth M.
O'Brien and Willis A. Ehlers.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
CARNEY, Justice.
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INTRODUCTION
Two years after leaving her children in the care of their uncle and aunt in
Canada, a mother sought to have them returned to her in Juneau. The uncle and aunt
opposed, arguing that it was in the children's best interests to remain with them.
Simultaneous child custody proceedings commenced in the Alaska superior court and
in Canadian courts; Alaska ultimately concluded it had jurisdiction over the dispute.
Following a custody trial, the uncle and aunt were granted physical and legal custody
of the children. The mother appeals, alleging that the court made a number of legal and
factual errors. Because the superior court's factual findings are supported by the record
and because it used the proper legal framework in this custody dispute, we affirm the
superior court's order.
FACTS AND PROCEEDINGS
A. Facts
This case concerns the custody of Laura O'Brien's children, Eliza and
1
Ben. Eliza's father is Kenneth O'Brien. Kenneth and Laura were married in 2004 and
divorced in 2011. Laura was granted sole legal and primary physical custody . Ben's
father, Willis Ehlers, is a member of the Central Council Tlingit and Haida Tribes of
Alaska; Ben is therefore an Indian child as defined in the Indian Child Welfare Act
2
(ICWA).
The children spent part of the summer of 2016 in Hay River, Northwest
Territories, Canada with Laura's brother, Francis Delaplain, and his wife, Kassandra
Spencer. Ben and Eliza returned to Juneau the following school year, and again stayed
1 We use pseudonyms for both of Laura's children to protect their privacy.
Because Eliza is now an adult, this case is moot with respect to her custody.
2 25 U.S.C. ｧ 1903(4). (" 'Indian child' means 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.")
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with Francis and Kassandra in the summer of 2017. This time, Laura joined her children
for the summer. After returning briefly to Juneau by herself, Laura moved to Hay River
to live with her children, Francis, and Kassandra in August 2017. Laura apparently
moved to Hay River to get a "fresh start." Eliza and Ben began school there that fall.
Laura moved to Oregon in November 2017. Just before she left Hay
River, Laura signed a guardianship document purporting to grant Francis and Kassandra
"all the rights and obligations that I have as a parent," including decisions with respect
to Eliza 's and Ben's medical care, education, and "general welfare." The document
contained no provisions for revocation or enforcement.
The parties dispute the reasons Laura left Francis and Kassandra's home
and moved to Oregon. Laura claims that Francis and Kassandra forced her to leave
without her children, and that she only moved to Oregon because a friend, Codey,
offered her a place to stay. Laura also contends Francis and Kassandra began to restrict
her communication with her children almost immediately after she left Hay River.
Francis and Kassandra assert that Laura moved to Oregon to pursue a romantic
relationship after they confronted her about her verbal aggression and substance use.
Laura stayed briefly with Codey after she moved to Oregon. In early
December 2017 Laura went to Seattle to stay with a friend who was ill. Laura then
moved to Juneau around late January 2018 for about a month and a half. Then she
moved back to Oregon with Codey. In March 2018 Laura sent a text message to Francis
telling him that she and Codey had "dated for over two years now and ha[d] decided to
get married." They did not marry, however, and in early 2019 the relationship ended
and Laura moved back to Juneau.
In May 2018 Willis Ehlers sent Francis and Kassandra a letter giving them
permission to apply for a passport for Ben; Laura sent a similar letter the next month.
Francis and Kassandra traveled to Vancouver, British Columbia with the children and
offered to meet Laura and to pay for her lodging; Laura declined. Laura also declined
several later offers from Francis and Kassandra to meet them and her children on trips.
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Francis and Kassandra obtained permanent residency for Eliza and Ben in spring 2018
so they could receive health care through the Canadian government.
In October 20 19 Laura and her mother arrived unannounced in Hay River.
Laura apparently intended to take Ben, but not Eliza, to Juneau. Local police became
involved and apparently declined to assist Laura. Laura and her mother returned to
Juneau without either child.
B. Proceedings
In November 2019 Francis and Kassandra moved for sole custody of Ben
and Eliza in the Supreme Court of the Northwest Territories. Laura filed a cross motion
asking the court to decline jurisdiction or to award her custody and require the
children's return to Juneau instead. Laura also moved to enforce the custody order in
her 2010 Alaska divorce case "for the return" of Eliza and she filed a motion for custody
of Ben. This second motion was filed under a new case number and listed Ben's father
Willis as the defendant even though it was directed at Francis and Kassandra.
The custody cases were assigned to different judges. Each judge
determined that Alaska had subject matter jurisdiction, but for different reasons. In
Eliza's case the court ruled that under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) Alaska had jurisdiction because it made the initial custody
3
determination in 2011 and no other state had established jurisdiction in the interim.
The judge in Ben's case concluded Alaska had jurisdiction after the Canadian court
issued an order declining jurisdiction because of Ben's connections to Alaska. The
cases were then consolidated and a custody trial was scheduled.
1. Custody Trial
The trial was held over the course of 11 days between February and
August 2021. Eighteen witnesses testified, and the court conducted individual in
3 See AS 25.30.310 (provision for "exclusive, continuing jurisdiction").
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4
camera interviews with the children by videoconference. Laura testified and also
presented several family members, family friends, neighbors, and current and former
romantic partners to testify about her parenting skills and trustworthiness.
Laura testified that Francis and Kassandra "kicked [her] out" of their home
with no warning. She testified that she was unable to find housing in such a small
community on such short notice, and that she did not wish to bring Ben and Eliza with
her to Oregon because "I didn't know the person that was offering . . . me a place to
stay." Laura also said she had health problems while she was in Hay River, and she
later sought treatment in Oregon.
Laura testified that Francis was abusive to her. She alleged he had
physically abused her once in Hay River . She also described disparaging phone calls
he made and the ways he cut her off from Ben and Eliza. Laura testified that Francis
told her that the "only way [Francis] would ever cooperate with me, in any way, was if
I went ahead and let [him] adopt my children." She testified that Francis was
intentionally cordial with her in emails but was "completely different" in person and
when speaking on the phone. She stated that she had to "beg" for information about
the children, but she conceded that Francis sent pictures and updates about both
children's lives.
Ben saw a counselor in Hay River from late 2019 until summer 2020.
Laura testified that, contrary to Francis's claims, she did not play a role in ending Ben's
counseling in Hay River. She stated that Ben did not want to continue and that the
counselor refused to work with Ben because the guardianship document was "nothing"
and "didn't give [Francis] any right to sign [Ben] up for counseling." She also testified
4 That is "an interview by the judge of a child in a custody case to ascertain
the child 's preference as to custody placement." Helen S.K. v. Samuel M.K., 288 P.3d
463, 467 n.2 (Alaska 2012).
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that she could not exactly remember why Ben's counseling ended, and she stated she
planned to enroll him in counseling in Juneau.
Willis Ehlers testified that Laura had raised Ben from birth until Ben
moved to Hay River and that his only involvement was paying child support . He
testified he "really [had not] spoken to [Ben]." He also testified that he wrote a letter
purporting to relinquish his parental rights to Ben, which he understood would make it
5
easier for Laura to be granted custody of the child.
Francis and Kassandra also called several family members, friends,
coaches, and teachers to testify about their care for the children and to describe Ben's
adjustment to Hay River.
Francis and Laura's sister, Amanda Dehling, testified that she had been
present for some phone calls between Francis and Laura when she lived in Hay River,
and that she did not hear him making disparaging comments to Laura. Amanda stated
that Francis was "making those phone calls happen" between Laura and her children
and encouraging the exchange of holiday gifts. And Amanda testified that between
2005 and 2016, when both she and Laura lived in Juneau, she observed Laura
consuming alcohol, smoking marijuana, and using prescription pills; she stated that
6
Laura once showed her tramadol pills she had ordered from the internet.
Eliza's father, Kenneth O'Brien, also testified on Francis and Kassandra's
behalf. Although he had not seen Eliza in person since September 2016, he supported
Francis and Kassandra having custody of her because he knew she was "safe" with
them. He testified he had made over two years' worth of child support payments to
Laura despite Eliza being in Francis and Kassandra's care, not Laura's. Kenneth also
5 Julie Delaplain, Laura's mother, testified that she offered Willis "not
much" money to write the letter.
6 Tramadol is a pain-relieving medication with "opioid-type effects."
Tramadol, STEDMAN'S MEDICAL DICTIONARY (2014).
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----------------------- Page 7-----------------------
testified that Laura's father contacted him in early 2020, asking him to write a letter in
support of Laura and "guarantee[ing]" that if he did so, he could "start talking and
having communication with [Eliza] again."
Kassandra testified about an incident in which Laura left a school dance
that Kassandra, Francis, Laura, and the children attended at Ben's school; she stated
that Laura told her she had gone to "go get high." Kassandra recounted another incident
in which Laura had unmarked pills delivered to their home, which she told Kassandra
were prescription drugs not prescribed to her. She also described Laura's outbursts,
testifying that Laura would resort to screaming at the children when frustrated and
would then often leave the house.
Kassandra also described the events that led to Laura's departure from
Hay River in 2017. She testified that Laura's alcohol use and verbal aggression
increased during her stay. Francis and Kassandra explained to Laura that "the situation"
with her behavior was unacceptable, and tried to convince her to work with them to
make their home "healthy." But Kassandra stated that Laura told them she had already
discussed her living situation with Codey, and that Codey and Laura had decided that
Laura would move to Oregon and Ben and Eliza would stay in Hay River. Kassandra
testified Laura made it clear to her and Francis that she was moving to Oregon for a
romantic relationship. Kassandra also testified that she had previously provided Laura
with referrals for counseling in Hay River, explained how to get on the local housing
list, and helped Laura apply for treatment programs.
Francis also testified. He recounted Laura's longtime struggle with
substance abuse, including at least one instance around 2008 in which Laura drove
7
while drinking alcohol with Eliza in the car. Francis testified that Ben was unable to
continue counseling because the provider's policies required Laura 's consent. Francis
7 In 2014 Laura was convicted of driving under the influence with Ben in
the car.
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stated Laura informed him that she would be arranging further counseling, but no
counseling was ever scheduled, and he did not believe that Laura ever set up any
counseling appointments for Ben. Francis stated that initially calls between Laura and
Ben occurred three times per week, but because Ben was so upset after the calls, they
were reduced to once per week.
Francis testified that he initially invited Laura to Hay River to help her,
and he stated he assisted her with her rﾃｩsumﾃｩ and helped her secure a job offer. He said
from approximately November 2017 to February 2018, Laura would sometimes
respond to the children by phone and sometimes would not respond at all. After Laura
and her mother's unplanned visit to Hay River in October 2019, Laura left a phone at
Francis's home, which the children could use at any time to contact their mother or
other family members.
Francis and Kassandra also called two expert witnesses as required by
8
ICWA. Kluane Adamek, a citizen of the Kluane First Nation in Canada who
"[m]aintains strong relationships" with Tlingit relatives in Alaska, testified. Adamek
testified Tlingit families would not customarily leave children with a relative for a
period of years without a plan to return, have limited contact with them, or pursue a
romantic relationship while leaving the children behind . The second expert, Jaime
Browning, was a social worker with extensive experience in children's services and
counseling. Browning testified that the length of time Laura had failed to meaningfully
participate in her children's lives was "significant" and that there was a serious risk of
emotional harm to Ben if returned to Laura's custody.
2. Custody Order
The superior court issued a written decision in September 2021 granting
Francis and Kassandra legal and physical custody of Ben and Eliza. It found that it
8 See 25 U.S.C. ｧ 1912(e) (requiring testimony of qualified expert witnesses
in certain child custody proceedings).
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would be in their best interests to remain with Francis and Kassandra, pointing to the
children's stated preferences to remain with them in Hay River and the fact that they
are "thriving" there. The court found that the "past four years that they have been there
have been the most stable time of their young lives."
The court also found by clear and convincing evidence that Eliza and
Ben's welfare required that they be placed in Francis and Kassandra's custody and that
returning them to Laura's custody would be to their clear detriment because of her
erratic behavior, substance use, and refusal to enroll Ben in counseling. The court did
not find credible much of Laura or her witnesses' testimony. It pointed to text messages
that directly conflicted with Laura's testimony that she had not left Canada to pursue a
romantic relationship in Oregon; highlighted inconsistencies in Laura's and others '
accounts of verbal abuse directed at Laura; discussed Laura's unwillingness to ensure
Ben could have counseling in Hay River; and expressed concern that Laura was
"unwilling to listen to the children." The court also noted that Laura had repeatedly
told her children she was going to harm herself.
Then, because Ben is an Indian child, the court addressed ICWA's
9
requirements. It found by clear and convincing evidence, supported by the testimony
of expert witnesses, that returning Ben to Laura's custody would result in serious
emotional damage to him, pointing to the evidence supporting its detriment finding.
And it found that active efforts had been made to "prevent the breakup of the Indian
family and that these efforts have proved unsuccessful."10 The court found that Francis
and Kassandra made active efforts because they worked to arrange individual and
family counseling and weekly video chat visits, offered to pay for several of Laura's
visits to Hay River, provided Laura a place to stay during her time in Hay River, and
9 See 25 U.S.C. ｧ 1903(4).
10 Id. ｧ 1912(d).
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assisted Laura with housing and job applications. It observed that Laura did not
consistently cooperate with those efforts or, as with counseling, "obstructed" those
efforts.
Laura appeals.
STANDARD OF REVIEW
"Superior courts have broad discretion to award custody."11 "We will
reverse a custody award only if the superior court abused its discretion or relied on
clearly erroneous factual findings."12 "We will find an abuse of discretion when the
superior court 'consider[s] improper factors in making its custody determination, fail[s]
to consider statutorily mandated factors, or assign[s] disproportionate weight to
particular factors while ignoring others.' "13 "A factual finding is 'clearly erroneous
when a review of the record leaves us with the definite impression that a mistake has
been made.' "14
"Whether the superior court's factual findings . . . satisfy ICWA is a
question of law to which we apply our independent judgment."15 Whether active efforts
were made is a mixed question of law and fact.16 " 'Whether returning a child to the
parent would likely cause harm is a question of fact' reviewed for clear error."17 And
11 Rosemarie P. v. Kelly B., 504 P.3d 260, 264 (Alaska 2021).
12 Id.
13 Dara v. Gish , 404 P.3d 154, 159 (Alaska 2017) (alterations in original)
(footnote omitted) (quoting Osterkamp v. Stiles, 235 P.3d 178, 183 (Alaska 2010)).
14 Rosemarie P., 504 P.3d at 264 (quoting Dara , 404 P.3d at 159).
15 Mona J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. ,
511 P.3d 553, 560 (Alaska 2022) (alterations in original) (quoting Ronald H. v. State,
Dep't of Health & Soc. Servs., Off. of Child.'s Servs. , 490 P.3d 357, 365 (Alaska 2021)).
16 Id.
17 Walker E. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
480 P.3d 598, 606 (Alaska 2021) (quoting Jude M. v. State, Dep't of Health & Soc.
Servs., Off. of Child.'s Servs., 394 P.3d 543, 558 (Alaska 2017)).
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"[w]hether the superior court's findings and the expert testimony presented at trial
satisfy the requirements of ICWA is a legal question."18
We review the superior court's evidentiary rulings for an abuse of
discretion.19 "Errors in the admission or exclusion of evidence warrant reversal only if
necessary to ensure 'substantial justice.' "20 The decision to conduct in camera
interviews is discretionary, and it is also reviewed for abuse of discretion.21
"We apply our independent judgment to questions of law, including 'the
interpretation and application of a statute,' as well as 'whether the superior court applied
an incorrect legal standard.' "22
DISCUSSION
Laura makes a number of arguments on appeal. She contends there was
insufficient evidence for the superior court to rule as it did and that it failed to consider
certain evidence when it determined the children's best interests. She argues the
superior court erred when it conducted in camera interviews with the children, and that
it erred by admitting certain evidence. She also argues the court improperly qualified
ICWA expert witnesses, that it erred by determining Francis and Kassandra made active
efforts to reunite the family, and that it erred by considering the children's placement
with Francis and Kassandra to be a "foster care placement" under ICWA. We see no
error in the superior court's custody decisions.
18 Id. (internal quotation marks omitted).
19 Guilford v. Weidner Inv. Servs. Inc. , 522 P.3d 1085, 1093 (Alaska 2023).
20 Id. (quoting Luther v. Lander , 373 P.3d 495, 499 (Alaska 2016)).
21 Helen S.K. v. Samuel M.K., 288 P.3d 463, 474 (Alaska 2012).
22 Williams Alaska Petroleum, Inc. v. State, 529 P.3d 1160, 1176 (Alaska
2023) (internal brackets omitted) (quoting Oakly Enters., LLC v. NPI, LLC, 354 P.3d
1073, 1078 (Alaska 2015)).
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A. The Superior Court Did Not Err By Awarding Custody To Francis
And Kassandra.
Laura argues that the superior court erred by awarding custody of the
children to relatives who are not their parents rather than to her. She asserts that the
court erred by concluding that Francis and Kassandra had met the requirement that we
set forth in Evans v. McTaggart23 to show that the parent is unfit or that the children's
welfare requires they be in the custody of a nonparent.24 She argues that the superior
court was required first to find that she was an unfit parent before it could award custody
to a third party, and the court failed to do so. Laura also contends that the evidence was
not sufficient to support the court's finding that the children's welfare required them to
be in the custody of a nonparent. And she challenges the court's best interests finding.
We see no error in the superior court's legal analysis or abuse of discretion in its custody
decision.
1. The superior court properly applied our decision in Evans v.
McTaggart.
In Evans v. McTaggart we addressed a similar situation where nonparent
relatives sought custody of a child - their grandson.25 We explained what Alaska law
requires for a third party to overcome the legal preference for awards of custody to a
parent.26 A third party must show either that the parent is unfit or "that the welfare of
the child requires the child to be in the custody of the non-parent" because the child
23 88 P.3d 1078 (Alaska 2004).
24 See id. at 1085.
25 Id. at 1079.
26 Id. at 1084. The parental preference "protects parents' constitutional
liberty interest in the care, custody, and control of their children." Husby v. Monegan ,
517 P.3d 20, 28 (Alaska 2022); see also Troxel v. Granville, 530 U.S. 57, 65-66 (2000)
(acknowledging "fundamental right of parents to make decisions concerning the care,
custody, and control of their children").
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would suffer "clear detriment" if placed in the parent's custody.27 In light of the
importance of a parent's right to raise their children, we required that the third party
must prove entitlement to custody by clear and convincing evidence.28
This case resembles Evans : although they are close relatives, Francis and
Kassandra are not Eliza and Ben's parents; Laura is their mother. Therefore, in order
to be awarded custody Francis and Kassandra must demonstrate that Laura is an unfit
parent or that Ben and Eliza's welfare requires that they be placed in Francis and
Kassandra's custody.29 Contrary to Laura's assertion, the superior court was not
required to find she was an "unfit parent."30 The superior court did not err when it
based its third-party custody award on its finding that Eliza and Ben would suffer clear
detriment if returned to their mother's custody.31
Laura also claims that Francis and Kassandra did not provide clear and
convincing evidence that the children's welfare required them to be in Francis and
Kassandra's custody. She argues that the court relied almost entirely on its interviews
with the children, that there was "[n]o evidence . . . at trial to impeach the credibility of
any of [her] witnesses," and that as a result, the court clearly erred when it found that
27 Evans, 88 P.3d at 1084-85.
28 Id. at 1085-86.
29 See id. at 1085; see also Dara v. Gish , 404 P.3d 154, 162-65 (Alaska 2017)
(affirming custody grant to grandparents where child would suffer clear detriment if
returned to parent's custody); Rosemarie P. v. Kelly B., 504 P.3d 260, 265-67 (Alaska
2021) (affirming custody award of joint custody under third-party framework to
mother's former same-sex partner).
30 See Rosemarie P., 504 P.3d at 265 ("This case involves only the 'welfare
of the child' prong."); see also Dara, 404 P.3d at 160-62 (affirming custody award
based on "welfare of the child" prong only).
31 To the extent Laura argues our decision in Evans is in conflict with the
federal constitution, she failed to raise that argument before the superior court and it is
therefore waived. See Rhodes v. Erion , 189 P.3d 1051, 1055 (Alaska 2008).
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they were not credible.32 But "[f]actual determinations, including judging the
credibility of witnesses, [are] left to the fact finder,"33 and "[w]e afford particular
deference to factual findings based primarily on oral testimony, because the trial court
is better suited to judge the credibility of witnesses and weigh conflicting evidence."34
The court heard from many witnesses over 11 days. And it generally
credited the testimony from witnesses supporting Francis and Kassandra over those
supporting Laura. In particular, Francis and Kassandra's witnesses described incidents
like Laura's substance use and erratic behavior and the impact these incidents had on
the children.
Laura's testimony, on the other hand, was inconsistent with others'. For
example, Laura described being prevented from having any contact with Eliza and Ben
after she left Canada. But she conceded in her testimony that she was provided updates
about the children's lives and activities in Hay River, and the record demonstrates that
she was not "cut off" from the children. The superior court also heard a recording of a
call between Laura, Eliza, and Ben, in which Laura refused to acknowledge her
children's description of distressing events they recalled from earlier in childhood.35
The superior court did not clearly err when it found by clear and
convincing evidence that it would be to the children's detriment to return to Laura's
custody and that their welfare required that they remain with Francis and Kassandra.
32 We address Laura's argument that conducting in camera interviews of
Eliza and Ben was an abuse of discretion below.
33 State v. Grubb, 546 P.3d 586, 603 (Alaska 2024).
34 Vang v. Xiong, 531 P.3d 979, 983 (Alaska 2023) (quoting Kristina B. v.
Edward B., 329 P.3d 202, 207 (Alaska 2014)).
35 Laura also argues the court should have excluded this recording because
she claims that it was made without her consent and was therefore illegal. But the
exclusionary rule she seeks to invoke is a rule for criminal cases; this is a civil case and
it does not apply. See Alaska Rule of Evidence 412.
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2. The superior court did not err by finding that it would be in the
children's best interests to remain with Francis and Kassandra.
Laura makes a number of arguments asserting that the superior court's
best interests analysis was flawed, including that it abused its discretion by conducting
in camera interviews with Eliza and Ben.
We first address Laura's contention that the superior court abused its
discretion when it interviewed Ben and Eliza in camera. The trial judge in this case
conducted interviews by videoconference because the children were still living in
Canada at the time of the Juneau custody trial. Laura argues that, because the court was
unable to ensure that no one influenced the children's answers in the interviews, it was
improper for the court to conduct the interviews or to consider the children's stated
preferences. She also argues in general terms that her due process rights were violated.
Courts frequently interview children in custody disputes if the children are
of "sufficient age and capacity to form a preference."36 That preference is one of the
statutory factors a court may consider when making a best interests determination in a
child custody case.37 We have held that the superior court has discretion to conduct
such interviews in camera for the purpose of learning the child's custody preference.38
While judges usually conduct the se interviews with the child in their chambers at a
courthouse, rather than by videoconference, Eliza and Ben were located in a different
country. Laura, in arguing her own rights were violated, also observes that this kind of
36 AS 25.24.150(c)(3); see, e.g., Jenkins v. Handel, 10 P.3d 586, 590 (Alaska
2000) (noting superior court interviewed children in custody case to learn custodial
preferences).
37 See AS 25.24.150(c).
38 See Helen S.K. v. Samuel M.K., 288 P.3d 463, 473 (Alaska 2012). In that
case we also cautioned that the interview must be limited "to the issue of the child's
parental preference," and that such interviews "are not to be used as a method of
obtaining additional information on other issues in the custody proceeding," including
other best interests factors. See id. at 474.
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interview "creates a risk" of infringing on parents' due process rights. But in Helen
S.K. we explained that this infringement can be avoided if the parties are "given a
summary of the information provided in the in camera interview and to be relied on at
trial."39 The superior court provided the parties with a detailed summary of its interview
with Eliza and Ben on record. The court did not abuse its discretion by conducting the
interviews by videoconference.
Laura argues that a number of the factual findings supporting the court's
best interests determination are clearly erroneous. Laura first argues that the superior
court erred by failing to consider Francis and Kassandra's "unilateral decision" not to
return the children to her custody. She contends that they violated the existing custody
order and that demonstrated Francis and Kassandra were not willing "to facilitate and
encourage a close and continuing relationship" with her. 40 But Francis and Kassandra
were not parties to the custody case between Laura and Kenneth O'Brien. And Laura
conceded and the trial court expressly found that the children were not prevented from
contacting Laura.41 This was not a clearly erroneous factual finding.
Laura next contends that the trial court erred because it placed "excessive
weight" on Eliza and Ben's preference to remain in Hay River, particularly because it
was based on their videoconference interviews. But we have held that the superior court
has discretion in determining what weight to give a child's preference.42 Though Laura
39 Id. at 474.
40 See AS 25.24.150(c)(6).
41 Laura also asserts the superior court failed to consider "restrictions"
Francis and Kassandra placed on the children, which she asserts limit contact between
Eliza and Ben and members of their extended family in Juneau. But she does not cite
any statutory factor this might weigh upon or a legal rule requiring explicit
consideration of that information. See Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059,
1062 (Alaska 2005) ("We do not consider arguments that are inadequately briefed.").
42 See Michele M. v. Richard R., 177 P.3d 830, 838 (Alaska 2008).
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contends that the trial court placed "excessive weight" on their preference, the court did
not clearly err by finding that the children preferred to remain in Hay River and it did
not abuse its discretion when it placed greater weight on that factor over others when
considering the children's best interests.
Laura next argues the superior court erred when it found that "other
witnesses" in addition to Francis and Kassandra testified as to Laura's "unstable
behavior and substance abuse." Laura is correct that there were not "other witnesses";
only one other witness supported Francis and Kassandra's testimony about her behavior
and substance abuse. Laura and Francis's sister, Amanda Dehling, testified that
between 2005 and 2016, when both she and Laura lived in Juneau, she observed Laura
consuming alcohol, smoking marijuana, and using prescription pills. She also stated
that Laura once showed her tramadol pills she had ordered from the internet. Laura
argues that the court should not have credited Amanda's testimony because she "did
not . . . personally spen[d] time with Laura in the time prior to her move to Hay River,
during her time in Hay River, or after she left Hay River." But Amanda was present in
Hay River when Laura arrived unannounced to remove Ben and return with him to
Juneau. And it is the trial court's province to weigh evidence; we will not reweigh it
on appeal.43 Although only one "other witness" supported Francis and Kassandra's
testimony on this issue, the superior court did not clearly err when it found that
additional testimony supported Francis and Kassandra's testimony about Laura's
behavior and substance use.44
43 See Fiehler v. Mecklenburg, 538 P.3d 706, 722 (Alaska 2023).
44 Laura also argues that Francis and Kassandra's testimony about the
revocability of the guardianship was contradictory. However, the testimony she points
to is not contradictory; both Francis and Kassandra consistently testified that they
believed the guardianship was revocable and "not a permanent custody order."
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Laura next contends the court clearly erred when it found that she was
unwilling to do "whatever was necessary to enable both children to have badly needed
counseling." She argues that it was actually Francis and Kassandra that "blocked"
counseling for Ben. She points to her own testimony that she planned to enroll Ben in
counseling in Juneau through tribal resources. But Francis testified otherwise, stating
that Ben was unable to continue because Laura had not consented, and that Laura never
followed through or arranged counseling after stating she would do so. And the court
received evidence of an email exchange in which Ben's counselor in Hay River
confirmed with Laura that they had mutually agreed that counseling for Ben would
cease. It is up to the trial court to weigh evidence and determine witness credibility;45
it did not clearly err by finding that Laura failed to ensure both children received
counseling.46
Laura also takes issue with the court's reference to "violence in the home"
in its custody order, asserting that the court "failed to appropriately consider" domestic
violence committed against her by Kenneth O'Brien during their marriage. She argues
the court improperly considered violence committed by someone else as a factor
weighing against her in its best interest finding. But the court only mentioned violence
in its analysis when it stated that "[the children] remember their time with [Laura] as a
time of turmoil, instability and violence." The court did not make any other factual
finding about violence in Laura's home.
Finally, Laura argues that the superior court "failed to appropriately
consider" her allegations that Francis committed domestic violence against her. Laura
45 See Mecklenberg, 538 P.3d at 722.
46 Laura also argues that the court erred by excluding as hearsay documents
that would have contradicted Francis's testimony. But the documents were never
offered into evidence; instead they were used to refresh Francis's recollection of the
total number of counseling sessions Ben attended.
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asserts that the court was required to give "detailed consideration" to the allegations,
citing AS 25.24.150. The best interest factors enumerated in AS 25.24. 150(c) require
that the court consider "any evidence of domestic violence . . . in the proposed custodial
household." But the statute does not require the superior court to take further action
unless it finds that a party had committed domestic violence.47 Laura correctly
acknowledges that her claim of error boils down to a credibility issue, and the court did
not find Laura's allegations against Francis credible. The superior court did not clearly
err when it found that Francis had not committed domestic violence against Laura.48
B. The Superior Court Correctly Applied The Indian Child Welfare Act.
The superior court determined that ICWA governs this case because Ben
is an Indian child. It also concluded that an award of custody to Francis and Kassandra
would constitute a "foster care placement" under ICWA. ICWA defines a "foster care
placement" as:
[A]ny action removing an Indian child from its parent or
Indian custodian for temporary placement in a foster home
or institution or the home of a guardian or conservator where
the parent or Indian custodian cannot have the child returned
upon demand, but where parental rights have not been
terminated.[49]
As a result, the court reasoned that Francis and Kassandra were required to prove by
clear and convincing evidence, supported by the testimony of qualified expert
witnesses, that Ben's continued custody by Laura is likely to result in serious emotional
47 See AS 25.24.150(j ) ("If the court finds that a parent has a history of
perpetrating domestic violence . . . .") (emphasis added).
48 Laura also raises factual allegations on appeal that were not raised in the
superior court. But we "will not consider on appeal new arguments which . . . depend
on new . . . facts." Kaiser v. Umialik Ins., 108 P.3d 876, 881 (Alaska 2005).
49 25 U.S.C. ｧ 1903(1)(i).
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or physical damage to him.50 And it concluded that Francis and Kassandra had the
burden of showing 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."51
The superior court referred back to its findings that Eliza and Ben would
suffer clear detriment if returned to Laura's care to support its finding by clear and
convincing evidence that Ben would suffer serious emotional damage. It also
concluded this was supported by the testimony of expert witnesses Jaime Browning and
Kluane Adamek. Finally, it found that Francis and Kassandra had made active efforts,
and it enumerated those efforts. It noted Francis and Kassandra had attempted to
arrange individual and family counseling and weekly video chat visits, had offered to
pay for visits to Hay River and provide Laura a place to stay during visits, and had made
efforts to help Laura obtain housing and employment before she departed Hay River.
Laura argues that the superior court erred by finding this case amounted
to a "foster care placement," thereby triggering ICWA's more stringent substantive
requirements. She also challenges the court's determination that Francis and Kassandra
made active efforts, its qualification of Browning and Adamek as expert witnesses, and
its finding that Ben would suffer serious emotional damage if returned to Laura's care.
We see no error in the superior court's findings and conclusions pursuant to ICWA.
1. The custody action was a "foster care placement" under ICWA.
Laura claims that the court committed legal error by treating its custody
award to Francis and Kassandra as a "foster care placement," which required it to make
50 See id. ｧ 1912(e).
51 See id. ｧ 1912(d).
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further findings under ICWA's more protective standards.52 She asserts that the case
does not involve a foster care placement because no "Provincial, State, or Tribal
authority sought a foster placement." And she instead asserts that Francis and
Kassandra should have been required to make a report to a child protection agency in
Canada or Alaska if they "thought the children were in danger," rather than attempting
to "steal her children from her for their own enjoyment."
The superior court properly determined that awarding custody to Francis
and Kassandra amounted to a foster care placement as defined by ICWA.53 Ben is an
"Indian child" placed in the "home of a guardian" - Francis and Kassandra. Laura
"cannot have [him] returned upon demand" because Francis and Kassandra have been
awarded custody, but her parental rights have not been terminated.
"Since the early days of ICWA, we have rejected the claim that ICWA
applies 'only to custody proceedings involving the removal of Indian children from
their homes by nonfamily public and private agencies.' "54 We have applied ICWA to
a variety of private disputes over children's custody: a custody dispute between
grandparents,55 a custody dispute between a father and a stepfather after the mother's
death,56 and "custody disputes within the extended family," even when the case
"concerns a voluntary placement within the family."57
52 See id. ｧ 1912(d), (e). We observe that by requiring Francis and
Kassandra to meet ICWA's more stringent standards, the court provided heightened
protection to Laura's parental rights.
53 Id. ｧ 1903(1)(i) (defining "foster care placement" under ICWA).
54 Rice v. McDonald , 390 P.3d 1133, 1136 (Alaska 2017) (quoting A.B.M. v.
M.H. , 651 P.2d 1170, 1172 (Alaska 1982)).
55 See Starr v. George, 175 P.3d 50, 54-55 (Alaska 2008).
56 See J.W. v. R.J., 951 P.2d 1206, 1208, 1214 (Alaska 1998), overruled on
other grounds by Evans v. McTaggart, 88 P.3d 1078, 1084-85 (Alaska 2004).
57 See A.B.M. , 651 P.2d at 1173.
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In J.W. v. R.J. a child's father challenged a custody award to the child's
stepfather after the mother died.58 The child had been in the stepfather's physical
custody prior to litigation.59 We held that although the father did not previously have
physical custody, "the proceedings still removed the child from the father's legal
custody" when the stepfather was granted custody.60 Accordingly we concluded that
the custody order constituted a "foster care placement," even though an Indian child
had not been literally removed from a parent's custody at the conclusion of
proceedings.61
We reached a similar conclusion in Rice v. McDonald.62 In that case the
children's father murdered their mother, and the father's sister moved the children to
Texas; maternal relatives were not notified when the paternal relatives filed for custody
of the children.63 We reasoned that although the father was in jail and the children were
not in his physical custody, because the applicant sought to "remove the children from
[the father's legal custody], place them in her home, and prevent [the father] from
having the children returned upon his demand," the factual circumstances constituted a
foster care placement under ICWA.64
The circumstances surrounding Ben's custody are similar, and Laura
presents no argument why we should depart from our precedent. Francis and Kassandra
sought to "remove" Ben from Laura's custody and place him in their custody, but
Laura's parental rights were not terminated. The superior court correctly determined
58 951 P.2d at 1208.
59 Id.
60 Id. at 1213.
61 Id.
62 390 P.3d 1133, 1136 (Alaska 2017).
63 Id. at 1135.
64 Id. at 1137.
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that placing Ben in Francis and Kassandra's custody was a "foster care placement" as
defined by ICWA.65
2. The superior court did not abuse its discretion by qualifying
Francis and Kassandra's experts as expert witnesses.
ICWA requires the party seeking a foster care placement to prove by clear
and convincing evidence, including the testimony of qualified expert witnesses, that the
Indian child would suffer serious emotional or physical damage if placed in the parent's
custody.66 Francis and Kassandra presented two expert witnesses : Kluane Adamek and
Jaime Browning. Laura argues that it was error to qualify them as experts because they
each lacked the necessary experience and training. The superior court did not abuse its
discretion when it qualified them as experts.
Laura argues that because Kluane Adamek is a member of the Inland
Tlingit of Canada, she is not qualified to testify as an expert regarding Ben's tribe, the
Coastal Tlingit and Haida Tribes. She also argues that Adamek lacked expertise in
child psychology and custody and was not qualified because she did not speak to Ben
or any of his relatives that are Tribal members.
"ICWA itself does not define 'qualified expert witness' or explain what
testimony such a witness must provide."67 The Bureau of Indian Affairs (BIA) issued
regulations in 2016 explaining ICWA's qualified expert witness requirement:
A qualified expert witness must be qualified to testify
regarding whether the child 's continued custody by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child and should be
65 See 25 U.S.C. ｧ 1903(1)(i).
66 25 U.S.C. ｧ 1912(e).
67 State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. v. Cissy A.,
513 P.3d 999, 1009 (Alaska 2022).
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qualified to testify as to the prevailing social and cultural
standards of the Indian child's Tribe.[68]
We have previously noted that the BIA explained the "importance of cultural context
in informing a court's findings about the likelihood of serious damage to the child."69
It emphasized that Congress's purpose in passing ICWA was to "make sure that Indian
child-welfare determinations are not based on 'a white, middle-class standard,' " and
that requiring cultural expertise "ensures that relevant cultural information is provided
to the court and that the expert [causal relationship] testimony is contextualized within
the Tribe's social and cultural standards."70
We have also explained that a cultural expert's testimony "must somehow
be grounded in the issues or questions presented in the case" in order to provide
"meaningful assistance to the court."71 We discussed examples of how to provide the
necessary grounding : allowing the expert to view relevant records, providing the expert
with information about the case, and asking detailed questions that "provide the expert
with important context."72 Finally, we have held that "if one witness is qualified to
testify and does testify about the causal relationship, then a separate expert qualified to
testify about tribal culture need not also directly opine on causation"; in other words,
the testimony of two expert witnesses can be aggregated.73
68 25 C.F.R. ｧ 23.122(a) (2016).
69 See Cissy A., 513 P.3d 999, 1009-10 (Alaska 2022) (citing Indian Child
Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,829 (June 14, 2016).
70 Id. (alteration in original) (quoting Indian Child Welfare Act Proceedings,
81 Fed. Reg. 38,778, 38,829 (June 14, 2016)).
71 Id. at 1017.
72 Id.
73 See id. at 1016; see also Oliver N. v. State, Dep't of Health & Soc. Servs.,
Off. of Child.'s Servs., 444 P.3d 171, 178-79 ("A tribal expert does not need to be
qualified to speak to the likelihood of harm to the child if there is a second qualified
expert who can . . . .").
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The superior court did not abuse its discretion when it qualified Adamek
as a cultural expert witness. Adamek testified she was one of ten regional chiefs in the
Canadian Assembly of First Nations. She had previously served in other roles including
trustee of the Kluane First Nation Trust and founder of a northern indigenous emerging
leaders group. Adamek also testified that she led the planning of a gathering of Tlingit,
Tahltan, and Kaska youth in the Yukon to help them feel "emotionally supported" and
to continue to develop connections to their culture. And although she does not belong
to the same Tlingit tribe as Ben, she regularly participates in a gathering called
Celebration in Southeast Alaska with the Coastal Tlingit. Adamek also testified that
she has numerous personal ties to the Coastal Tlingit, described similarities in the
Tribes' history and practices, and testified as to her ability to speak about Tlingit
cultural practices. The superior court did not abuse its discretion when it qualified
Adamek as an expert regarding the cultural practices of Ben 's Tribe.
Laura also argues the court abused its discretion when it qualified Jaime
Browning as an expert witness. Laura contends that Browning lacks the expertise
required to satisfy ICWA's expert testimony requirements. Laura also argues that
Browning improperly relied on information other than her own observations in
testifying.
The 2016 BIA regulations also outline the requirements for expert witness
testimony about whether "the child 's continued custody by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the child."74 We
have recognized that "[t]he expert witness who is qualified to draw this causal
connection must have an 'expertise beyond normal social worker qualifications.' "75
74 25 C.F.R. ｧ 23.122(a) (2016).
75 Eva H. v. State, Dep 't of Health & Soc. Servs., Off. of Child. 's Servs., 436
P.3d 1050, 1054 (Alaska 2019) (quoting BUREAU OF INDIAN AFFS., U.S. DEP'T OF THE
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And though we have not defined "normal social worker qualifications,"76 "witnesses
we have considered to be clearly qualified under ICWA had substantial education in
social work or psychology and direct experience with counseling, therapy, or
conducting psychological assessments."77
Browning's qualifications go beyond those of a "normal social worker."
She has a master's degree in social work and additional licensing in forensic social
work. Her experience includes over 15 years in the child protection field, including
working as an Office of Children's Services (OCS) ICWA family services supervisor
and as a caseworker in a therapeutic drug court. She also worked with adolescents in a
residential treatment center. Prior to her work at OCS, Browning worked with mentally
ill individuals on community case management and medication compliance. We have
affirmed superior courts' qualification of Browning as an expert in a number of recent
ICWA cases.78
Laura argues the court erred by permitting Browning to testify as an expert
witness because she is neither a psychologist nor a psychiatrist. She also points out that
Browning's experience does not include "child counseling, working with families that
had been separated, or working with families that were attempting to reunite."
INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE ACT 54 (Dec.
2016)), abrogated by Cissy A., 513 P.3d at 1013-15.
76 Id. at 1055, 1057.
77 Id. at 1057.
78 See Addy S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
No . S-17427, 2020 WL 915975, at *5 (Alaska Feb. 26, 2020); Daphne O. v. State, Dep't
of Health & Soc. Servs., Off. of Child.'s Servs., Nos. S-16960/16962, 2020 WL
1933651, at *11 (Alaska Apr. 22, 2020); Julio A. v. State, Dep't of Health & Soc. Servs.,
Off. of Child.'s Servs., No. S-17603, 2020 WL 4497830, at *7 (Alaska Aug. 5, 2020);
Trisha D. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., No. S-17696,
2020 WL 7238381, at *5-*6 (Alaska Dec. 9, 2020); Jenny A. v. State, Dep't of Health
& Soc. Servs., Off. of Child.'s Servs., Nos. S-17670/17672, 2021 WL 1400898, at *6-
*7 (Alaska Apr. 14, 2021).
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Although Laura makes several attacks on Browning's qualifications, Browning's
experience, training, and education demonstrate that she meets ICWA's stringent expert
witness requirements.
Laura's argument that Browning inappropriately relied on hearsay also
fails. She argues that Browning based her opinion on information she learned from
Francis and Kassandra instead of personal knowledge. But Evidence Rule 703
specifically provides that "[t]he facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made known to the expert
at or before the hearing" and "need not be admissible in evidence."79
The superior court did not abuse its discretion when it qualified Adamek
and Browning as experts.80
3. The superior court did not err by determining Francis and
Kassandra made active efforts.
Laura argues that Francis and Kassandra failed to make active efforts as
ICWA requires.81 "Any party seeking to effect a foster care placement of . . . an Indian
child under State law shall satisfy the court that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful."82
79 Alaska R. Evid. 703.
80 Laura also argues that the court clearly erred because it relied on Adamek
and Browning's testimony to find that returning Ben to Laura's custody would be likely
to cause him harm. But her argument depends upon our agreement with her that it was
error to consider them as expert witnesses, and because we conclude their qualification
as experts was appropriate, this argument fails.
81 See 25 U.S.C. ｧ 1912(d).
82 Id.
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The BIA regulations define active efforts as "affirmative, active,
thorough, and timely."83 We "conduct[] an active efforts inquiry on a case-by-case
basis because 'no pat formula' exists for distinguishing between active and passive
efforts."84 We have given examples of passive efforts, such as instructing the parent to
obtain employment without taking any further steps to offer resources or help the parent
develop job skills.85 We have contrasted such passive direction to "[a]ctive efforts . . .
where the state caseworker takes the client through the steps of the plan rather than
requiring that the plan be performed on its own ."86 And we have directed that efforts
must be "tailored to the facts and circumstances of the case," but recognized "the active
efforts requirement does not require perfection."87 We have made clear that we look at
active efforts "in [their] entirety."88 Finally, "a parent's actions have a place in the
court's determination of whether OCS's efforts satisfy the ICWA standard."89
The superior court found that Francis and Kassandra made active efforts
and it enumerated those efforts. It pointed to "attempts to set up counseling for the
children and family counseling, weekly video chat visits, offers to pay for visits to Hay
River, providing Ms. O'Brien a place to live when she came to Hay River with the
83 25 C.F.R. ｧ 23.2 (2016).
84 Mona J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
511 P.3d 553, 561 (Alaska 2022) (quoting Philip J. v. State, Dep't of Health & Soc.
Servs., Off. of Child.'s Servs., 314 P.3d 518, 527 (Alaska 2013)).
85 See id.
86 Id. (quoting A.A. v. State, Div. of Fam. & Youth Servs., Off. of Child.'s
Servs., 982 P.2d 256, 261 (Alaska 1999)).
87 Id. (first quoting 25 C.F.R. ｧ 23.2 (2016); and then quoting Pravat P. v.
State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 249 P.3d 264, 272 (Alaska
2011)).
88 Denny M. v. State, Dep't of Health & Soc. Servs., Off. of Child. 's Servs.,
365 P.3d 345, 350 (Alaska 2016).
89 Mona J. , 511 P.3d at 562.
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----------------------- Page 29-----------------------
children, and efforts to help her procure housing and employment in Hay River." The
court also observed that Laura has not always cooperated, and has sometimes
"obstructed" these efforts.
Laura argues that the superior court improperly considered events that
occurred before the custody dispute and failed to consider the testimony of her
witnesses which showed Francis and Kassandra's "active opposition to the maintenance
of [Ben]'s Indian family." She claims that Francis and Kassandra "cut off all contact"
between the children and herself, her mother, and Ben's extended family in Juneau. But
Laura's argument largely turns on her own view of the evidence, which the court found
was not credible.
Laura does not dispute that she initially moved to Hay River to get a fresh
start with her children, or that Francis and Kassandra offered their home to her until she
could find her own housing. Francis also tried to arrange counseling for the children,
set up weekly video chat visits, helped Laura obtain housing and employment, and
offered to pay for her to visit the children in Hay River or while they vacationed
elsewhere. Kassandra testified that she referred Laura for counseling while she lived
in Hay River, explained how to get on the local housing list, and helped Laura apply for
treatment programs. Kassandra also testified that she enrolled herself, Francis, and
Laura in a family communication application while Laura was away from Hay River,
but Laura declined several invitations to use it.
Reunification efforts must be tailored to the particular case but need not
be perfect.90 Francis and Kassandra assisted Laura with housing, job, and treatment
applications, and encouraged her to stay in contact with the children . Laura, on the
90 Id. at 561.
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----------------------- Page 30-----------------------
other hand, repeatedly displayed a lack of cooperation.91 The superior court did not err
by concluding that the efforts Francis and Kassandra made over the entirety of the time
that Ben and Eliza lived with them amounted to active efforts.
C. The Custody And Visitation Orders Were Not An Abuse Of
Discretion.
Laura finally argues that the superior court did not appropriately consider
the hardship its custody and visitation orders placed upon her. She asserts that traveling
to Hay River for visitation "inappropriately limit [s] [her] ability . . . to spend time with
and to care for her children" because of the distance and cost of travel. She argues that
it also creates a barrier to visitation for the children's fathers, extended family, and
Tribal members. And she argues that the court failed to take into account the children's
extracurricular activities and family and community ties in Juneau.
Laura offers no support for her argument that the superior court was
required to consider the specific facts she focuses on and incorporate them into its
custody decision. When it considers a child's best interests, the court may "choose to
discuss only those factors it finds relevant," and "need not refer to all of [the factors] in
explaining its custody decision."92 It also need only discuss factors "that are actually
relevant in light of the evidence presented."93 We have affirmed orders conditioning a
parent's visitation on requirements such as undergoing a substance use evaluation and
monthly drug testing94 or a psychological evaluation.95
91 See Pravat P., 249 P.3d at 272 (noting parent "repeatedly displayed a lack
of cooperation" when emphasizing "a parent's lack of cooperation may excuse minor
faults" in active efforts).
92 Angelica C. v. Jonathan C., 519 P.3d 334, 341 (Alaska 2022).
93 Peterson v. Swarthout, 214 P.3d 332, 337 (Alaska 2009) (quoting Thomas
v. Thomas, 171 P.3d 98, 102-03 (Alaska 2007)).
94 Pasley v. Pasley, 442 P.3d 738, 754-55 (Alaska 2019).
95 Sagers v. Sackinger, 318 P.3d 860, 866-67 (Alaska 2014).
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While the superior court has broad discretion to fashion custody and
visitation awards, it abuses that discretion when it "consider[s] improper factors in
making its custody determination, fail[s] to consider statutorily mandated factors, or
assign[s] disproportionate weight to particular factors while ignoring others."96 Laura
offers no authority to support her claim that the court did so, beyond her assertions that
its decision was wrong.97 We are not persuaded that the court abused its discretion.
CONCLUSION
We AFFIRM the superior court's custody order.
96 Dara v. Gish , 404 P.3d 154, 159 (Alaska 2017) (alterations in original)
(footnote omitted) (quoting Osterkamp v. Stiles, 235 P.3d 178, 183 (Alaska 2010)).
97 See Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1062-63 (Alaska 2005)
("We do not consider arguments that are inadequately briefed.").
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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