Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. J.S. v. State (6/21/2002) sp-5590

J.S. v. State (6/21/2002) sp-5590

     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.


            THE SUPREME COURT OF THE STATE OF ALASKA

J.S.,                                                  )
                              )    Supreme Court No. S-9722
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3KO-89-10 CP
                              )    3KO-89-11 CP
STATE OF ALASKA,              )    3KO-90-22 CP
                              )
             Appellee.                  )    O P I N I O N
                              )
________________________________)  [No. 5590 - June 21, 2002]


          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Kodiak,
          Donald  D. Hopwood, Judge and Anna M.  Moran,
          Standing Master.

          Appearances:   J.S., pro se,  Anchorage,  and
          Gayle  J.  Brown, Anchorage,  for  Appellant.
          Michael   G.  Hotchkin,  Assistant   Attorney
          General,  Anchorage, and  Bruce  M.  Botelho,
          Attorney General, Juneau, for Appellee.  Alan
          L. Schmitt, Kodiak, Guardian Ad Litem.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.

I.   INTRODUCTION

          I.   Jacks1 parental rights were terminated as to his sons

Avery, Lyle, and Carl after Jack was convicted of five counts  of

sexual abuse against them.  Jack claims several errors were  made

by  the superior court.  Because we find that the superior  court

did  not  need  to require active efforts under the Indian  Child

Welfare Act, we uphold the termination of Jacks parental rights.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          This  case  involves the termination of Jacks  parental

rights to his three sons: Avery, Lyle, and Carl.  Avery was  born

in  June  1988.   Lyle and Carl, twins, were born in  June  1989.

Custody  of the boys appears to have been transferred to Jack  on

September  7,  1989 after the state petitioned to have  the  boys

removed from their mothers custody when the twins tested positive

for  cocaine  at birth.  During the first several  years  of  the

twins  life,  custody apparently went back and forth between  the

mother  and Jack.  Between January 1, 1994 and January 25,  1996,

the boys lived with Jack in Kodiak.

          The  Division  of  Family  and  Youth  Services  (DFYS)

removed  the  boys from Jacks care on January  25,  1996  due  to

reports  to  the Kodiak police department and DFYS  case  worker,

Mary Gray, by the boys mother and other relatives, that Jack  was

sexually  abusing  all three boys.  Jack was charged  with  eight

counts   of  engaging  in  acts  of  sexual  contact  and  sexual

penetration  including  fellatio, digital anal  penetration,  and

penile anal penetration.  A jury convicted Jack of four counts of

first-degree  sexual abuse of a minor and one  count  of  second-

degree  sexual abuse of a minor, counts which involved all  three

boys.   Jack  was  sentenced to nineteen years  with  four  years

suspended.   Also, as conditions of parole, Jack was ordered  not

to  have  contact, direct or indirect, with his sons or  his  own

sisters, or their families, without prior written approval of the

parole  officer.  Jack was also ordered not to have contact  with

any  minor children under the age of sixteen without the approval

of  the  parole  officer.   The court  of  appeals  upheld  Jacks

conviction in its entirety.

          After  their removal from Jacks custody, the boys  were

placed  in emergency custody.  DFYS attempted to place  the  boys

with  their  mother after her promise to remain clean and  sober.

The  mother  moved with the boys into a local womens shelter  but

abandoned  them  sometime during the night of February  4,  1996.

After  their mothers abandonment, the boys were placed in  foster

care and then placed with their aunt Cara on March 22, 1996.  The

boys remained with Cara until she informed DFYS that they had  to

be  moved  due to their inappropriate sexual behavior  with  each

other  and her own children.  The boys have since been placed  in

separate   foster  homes.   The  mothers  parental  rights   were

terminated on August 24, 1999.

     B.   Proceedings

          The state petitioned to have the boys declared children

in  need  of aid on January 26, 1996.  The superior court delayed

the  proceedings on several occasions pending resolution of Jacks

criminal charges.  The boys were adjudged children in need of aid

under  AS 47.10.010(4) by the superior court on January 7,  1997.

Also  on  that date the superior court granted the states  motion

for summary judgment, holding that Jack was collaterally estopped

from denying that he sexually abused his children in light of his

criminal  conviction.   In  January  1999  DFYS  petitioned   for

termination of Jacks parental rights as to all three boys.   Jack

moved  to have the boys declared Indian children for the purposes

of  the  Indian  Child Welfare Act (ICWA).  Preliminary  hearings

were  held in front of Superior Court Judge Donald D. Hopwood  on

January 26, 1996 and Standing Master Anna M. Moran on February 2,

February 17, May 4, and May 20, 1999.  The termination proceeding

was held May 25-27, 1999 before Standing Master Moran.

          The  Muscogee (Creek) Nation moved to intervene in  the

proceedings  under ICWA and that motion was granted  by  Standing

Master   Moran.   In  accordance  with  Standing  Master   Morans

findings,  the  superior court found, beyond a reasonable  doubt,

that  termination of Jacks parental rights was appropriate  under

AS  47.10.080(o)  given the length of his incarceration  and  the

needs  of  the  children.   These  findings  were  based  on  the

testimony of six expert witnesses and a social worker.

          However,   the  superior  court  found  that   it   was

uncontroverted that the state failed to offer any type of  active

remedial or rehabilitative services to Jack as required by  ICWA.

The  superior court found that for rehabilitation to occur,  Jack

would  have  to  admit that he sexually abused his  children  and

enroll  in a sex offender treatment program.  The superior  court

held  the record open for sixty days in order to allow the  state

to  develop and offer a treatment plan to Jack; and ruled that if

Jack  failed  to  accept the plan during this time  his  parental

rights would be terminated.

          The  state  developed  a case plan  that  included  the

requirement  that  Jack admit to charges I through  VIII  of  his

March  28,  1996 indictment, openly take full responsibility  for

his behavior, write a letter of apology to each of his three sons

involved in the termination proceedings, direct his attorneys  to

terminate  all  appeals of his criminal case, and enroll  and  be

accepted  into  a sex offender treatment program.  Jack  rejected

the  proposed case plan because it required him to admit  to  the

sexual abuse of his sons and because it required him to cease his

criminal appeals.

          The  superior court ordered the matter to be  heard  by

Standing Master Moran for additional findings on the issue of the

states  compliance  with  the August 24,  1999  order.   Standing

Master  Moran  found  that the states case plan  satisfied  ICWAs

remedial  measures  requirement and  recommended  termination  of

Jacks  parental  rights in December 1999.  In  January  2000  the

superior court approved a stipulation between the state  and  the

Muscogee Creek representatives noting that DFYS contacted all  of

the  boys  relatives,  that no family  members  were  willing  or

capable of caring for the boys, and that no families meeting  the

preference  requirements of  1915(a) of  ICWA  were  found  after

diligent  effort by DFYS.  The superior court issued an order  in

accordance  with  the findings of Standing Master  Moran  in  May

2000.

          Jack  now  appeals the decision of the  superior  court

terminating his parental rights.

 III.     STANDARD OF REVIEW

          We will affirm a trial courts factual findings in cases

of  termination  of  parental rights unless  those  findings  are

clearly erroneous.2  A finding of fact is clearly erroneous  when

we  are  left  with a definite and firm conviction based  on  the

entire record that the trial court has made a mistake.3   It is a

mixed  question  of  law  and fact as to whether  the  state  has

complied with the active efforts requirement of ICWA.4   We  will

defer  to  the  trial courts factual findings under  the  clearly

erroneous  standard  and review de novo any  questions  of  law.5

Whether the factual findings are sufficient to satisfy the [CINA]

rules  is  a  question  of  law that we  will  review  de  novo.6

Constitutional questions are questions of law for which  we  will

substitute our own judgment.7  We will adopt the rule of law that

is most persuasive in light of precedent, reason, and policy.8

IV.  DISCUSSION
     
     A.   The Superior Court Did Not Err In Terminating Jacks Parental
          Rights Because Active Efforts Were Not Required under ICWA.
          
          Jack argues that the proposed case plan offered by  the

state  in  response to the superior courts August 24, 1999  order

did not comply with ICWAs requirement that active efforts be made

to  rehabilitate  a family prior to the termination  of  parental

rights.  The state and the guardian ad litem (GAL) argue that the

active efforts requirement was complied with.  The state and  the

GAL  also  argue that ICWA should be interpreted as not requiring

active  efforts once a family is irrevocably sundered by parental

sexual abuse.

          The  Indian  Child Welfare Act requires  the  state  to

prove  active  efforts  . . . to provide  remedial  services  and

rehabilitative  programs designed to prevent the breakup  of  the

Indian family.9  We decide whether active efforts have been  made

on  a case-by-case basis.10  Generally, the states duty under the

active   efforts  requirement  is  not  affected  by  a   parents

motivation or prognosis before remedial efforts have commenced.11

We have previously held that [n]either incarceration nor doubtful

prospects for rehabilitation will relieve the State of  its  duty

          under ICWA to make active remedial efforts.12

          However,  the  enactment  of  the  Adoption  and   Safe

Families Act of 199713 (ASFA) convinces us that it is the  policy

of  Congress to not require remedial measures in situations where

a  court  has determined that a parent has subjected his  or  her

child to sexual abuse.  This enactment14 amended 42 U.S.C.  671 so

as  not to require reasonable efforts to be made to preserve  the

family when a court of competent jurisdiction has determined that

.   .  .  the  parent  has  subjected  the  child  to  aggravated

circumstances, which includes sexual abuse.15  Although this case

is not governed by ASFA, that act is useful in providing guidance

to  congressional  policy on child welfare issues.   It  suggests

that  in situations of adjudicated devastating sexual abuse, such

as  this  one, a persons fundamental right to parent is not  more

important  than a childs fundamental right to safety.  Therefore,

we hold that active efforts to reunify the abusing parent are not

required   in  a  situation  after  there  has  been  a  judicial

determination that the parent has subjected the child  to  sexual

abuse.

          Because the superior court could find the states active

efforts  duty was discharged when Jack was convicted of  sexually

abusing  his  children,  the  superior  court  did  not  err   in

terminating his parental rights.16

     B.   The Superior Court Did Not Err in Qualifying the Expert

          Witnesses.

          Jack  argues  that  the superior court  erred  when  it

qualified  experts that were without special knowledge of  social

and   cultural  aspects  of  Native  life.   In  L.G.  v.  State,

Department of Health and Social Services,17 we stated that so long

as  a  termination proceeding does not implicate  cultural  bias,

ICWAs  proof requirements can be satisfied by a qualified  expert

witness  without  any  special familiarity with  Native  cultural

standards.18   We  went  on to state that where  there  is  clear

evidence that a child faces a serious risk of physical neglect if

          she [or he] remains in [the] parents care, a trial judge may

terminate  parental  rights  without hearing  testimony  from  an

expert  in Native cultures.19  Jack has offered no evidence  that

the issue of cultural bias was raised at trial.

          During the course of the termination proceedings,  five

experts  testified as to the risk to the boys if  Jacks  parental

rights  were not terminated.  The therapists for all  three  boys

(four  therapists in total) testified that the boys could not  be

transitioned   back   into  Jacks  custody  without   substantial

emotional harm.  In addition, all four therapists testified  that

the  boys  would suffer severe emotional distress  if  they  were

required  to leave the respective foster families to  which  they

had  bonded.   Therefore,  the superior  court  did  not  err  in

terminating Jacks parental rights without hearing testimony  from

an  expert  on  Native  life  because cultural  issues  were  not

implicated  in  the  proceedings and there was sufficient  expert

testimony  that  the boys could suffer severe emotional  harm  if

Jacks parental rights were not terminated.

     C.   The Superior Court Did Not Lack Jurisdiction.

          A.   Jack argues that the superior court lacked jurisdiction

because violations of law occurred during the proceedings.   ICWA

provides  for  the  transfer of termination  proceedings  to  the

tribal court to which the children belong in some circumstances.20

However, Jack does not seem to be arguing here, nor did he  argue

in  the superior court,  that jurisdiction be transferred to  the

Muscogee  tribal  court.   Instead, he  argues  that  proceedings

should  be  terminated  and  the boys returned  to  their  Indian

Custodians.   Jacks Motion to Move Superior Court to: Declination

of   Jurisdiction:  and  Forthwith  Return  of  Child  to  Indian

Custodian  appears to be a motion to dismiss the  proceedings  in

their  entirety.   Also pertinent is the fact that  the  Muscogee

Tribe representatives signed a stipulation, that was approved  by

the  superior  court, that the tribe was contacted regarding  the

stability  of  the current placements and that the  tribe  is  in

          agreement with the states handling of the situation, including

the  boys  placement with non-Native families.  There is evidence

that  the Muscogee Tribe reserved the right to petition that  the

proceedings  be transferred to the tribal court but there  is  no

indication that a petition was ever filed.  Also, a petition  for

removal  under  U.S.C.   1911 was never  filed.   Therefore,  the

superior   court   had   jurisdiction  over   these   termination

proceedings.21

     D.   The  Superior Court Did Not Err in Upholding the States
          Placement of the Children Outside of ICWA Preferences.
          
          Jack  argues  that  the state failed  to  follow  ICWAs

placement requirements because there were family members of  Jack

who were willing to take the boys but who were never contacted by

the state.22  Jack argues that his brother, Aaron, was willing to

take  the children, as was Jacks sister, Lilly.  Jack also argues

that  the state failed to inquire about any extended family  that

may be able to take the boys.

          DFYS case worker Mary Gray testified that she contacted

the  Kodiak  Area  Native Association in  order  to  find  foster

placement  for the boys on several occasions but that  there  was

never  a  Native family available.  Gray also testified that  the

boys  were  placed with their aunt, Cara, but that did  not  work

out.   Gray then contacted the boys other aunt, Lilly, but  after

some  communications between Lilly and DFYS, Lilly  decided  that

she  should not take care of the boys.  Also, Gray testified that

she  had a meeting with Jack in the summer of 1998 but that  Jack

did  not offer the names of any relatives who could care for  the

boys  and that she had never heard of Jacks brother, Aaron, until

he appeared on the witness list in the proceedings.  Furthermore,

the  Muscogee Tribe representatives signed a stipulation  stating

that  the  state  worked in conjunction with the  tribe  to  find

placement  with the boys family pursuant to ICWA, that  placement

with  relatives  or other Native families was not available,  and

that  good  cause existed to deviate from ICWA preferences.   The

state complied with ICWAs preference guidelines.  Therefore,  the

          placement of the boys was not in error.

     E.   The Superior Court Did Not Rule that Jack Was To Have No
          Direct or Indirect Contact with His Children.
          
          Jack argues that the superior court erred when it found

that  he  was  not to have any contact with his  children.   Jack

argues  that this finding by the superior court was  one  of  the

reasons  that  his  parental rights were erroneously  terminated.

There is no evidence that the superior court ever ordered Jack to

have  no  contact with his children or based any  orders  in  the

termination  proceedings on whether or not contact occurred.   In

fact,  Jacks criminal conviction states that he was to have  [n]o

contact, direct or indirect, with the victims . . . without prior

written approval of the Probation/Parole Officer.  Therefore, the

superior  court  did not order him to have no  contact  with  his

children; this was one of the many conditions of Jacks parole.

     F.   The Superior Court Did Not Err in Denying Jacks Discovery

          Motions.

          A.   Jack argues that the superior court erred when it denied

discovery  of  notes to an interview that Jack believes  occurred

between Mary Gray and the boys.   Jack claims that he was  denied

discovery  of these notes because Gray and the district  attorney

denied  that this interview ever happened and the superior  court

agreed  with the district attorney and Gray.  The superior  court

granted  Jacks  discovery motion in part on  February  11,  2000,

allowing  him  access to any information that DFYS may  have  had

about  communications between DFYS and Lilly.  The superior court

issued  another  order on March 8, 2000 denying  Jacks  discovery

request because this discovery request was covered by the  courts

previous  order.   In  addition, DFYS proved that  Jack  received

discovery  of  DFYSs  entire file in this case.   Therefore,  the

superior court did not deny Jack discovery; there was no error in

connection with the superior courts discovery orders.

     I.    The  Superior  Court Did Not Err in Finding  Beyond  a
Reasonable          Doubt that Placement with Jack Was Likely  To
Result  in  Serious        Physical or Emotional  Damage  to  the
Children.

          Jack argues that the evidence presented to the superior

court  by  the  state  was insufficient  to  meet  the  beyond  a

reasonable doubt standard required by ICWA.23  Specifically, Jack

argues   that  the  expert  witnesses  did  not  have  sufficient

knowledge of the specific facts of this case.  We have stated:

          We  do  not  hold that a meeting between  the
          expert  and  the  parties to the  termination
          proceeding is required in every case. But the
          expert   opinion  should  be  based  on   the
          particular facts and issues of the case . . .
          in  order  to  support a  finding,  beyond  a
          reasonable  doubt, that serious  physical  or
          emotional harm will result.[24]
          
Jack was criminally convicted of sexually abusing the boys.   The

superior  court  was  therefore  justified  in  finding  in   the

termination  proceeding that this fact had been proven  beyond  a

reasonable  doubt.  We turn now to the specific expert  testimony

that  the  state  offered, and whether the expert  opinions  were

sufficiently based on the particular facts of this case.

          The first expert to testify was Pamela A. Robinson, who

has  a  Bachelor of Science degree in sociology with a  minor  in

psychology  and  a masters degree in counseling psychology.   She

testified that prior to getting her masters degree she worked for

twenty  years in early childhood education and child development,

and  that  she  has been qualified as an expert in several  other

cases.   At  the  time of her testimony, she had been  counseling

Carl  for approximately one and one-half years.  Upon the initial

consultation,  she  diagnosed  Carl  with  post-traumatic  stress

disorder,  possible  major depression, and  adjustment  disorder.

She  stated that she believed that Carl could not be transitioned

back to Jack without causing Carl emotional harm.

          The second expert to testify was Sandra Husted, who has

a   bachelors  degree  in  sociology  and  a  masters  degree  in

counseling.  She stated that she was a Clinician II at Providence

Mental  Health  Center in Kodiak from January 1998 until  January

1999.   At  the time of the hearing, she had been licensed  as  a

professional  counselor in Texas for nine years.   She  had  been

          qualified as an expert in psychotherapy and crisis emergency in

previous court cases.  She testified that she treated Avery  from

February of 1998 until November of 1998 during which time she saw

him  approximately every three weeks.  She testified  that  Avery

could not be transitioned away from his foster family and back to

Jack because of the abuse perpetrated by Jack.

          Dr.  Robert B. Duthie testified next.  He holds a Ph.D.

in   counseling  and  clinical  psychology  and  has  been  board

certified in forensic psychology since 1987.  He stated  that  he

had  been qualified as an expert in at least 100 previous  cases.

He first met Lyle in June of 1998 and had been following the case

ever  since.   He  testified that Lyle had post-traumatic  stress

disorder  arising  from  the  sexual  abuse  by  Jack.   He  also

testified  that Lyle could not successfully be placed  back  into

custody  with  Jack without emotional harm and risk of  continued

sexual  abuse  because  Jack  has  not  received  treatment   nor

apologized for the previous abuse.

          The fourth expert to testify was Dr. Joseph M. Keville,

who  has  a Bachelor of Science degree in social services  and  a

Ph.D.  in  education;  he  has been a  licensed  psychologist  in

Massachusetts since 1973.  He practices in the area  of  clinical

child psychology.  He testified that he had treated approximately

1,000  children in the last ten years.  He met with Avery on  two

occasions and testified that he thought that Avery would  have  a

severe  depressive reaction if he was forced to leave his  foster

family.

          The  fifth  expert to testify was Dr. Ronald D.  Howes,

who has a bachelors degree and masters degree in psychology and a

Ph.D.  in  clinical psychology.  He stated that he had  completed

over  2,000  hours of clinical internship in forensic  psychology

with  the  California  Department of  Corrections  and  is  board

certified  in trauma psychology with specialties in  sex  therapy

and  treatment of sex addictions.  He had testified as an  expert

in  court  on numerous occasions.  He stated that the  recidivism

rate  for  a  sex  offender increased in cases with  same  gender

sexual  abuse,  lack  of a strong family member  supervising  the

family,  and where the abuse was not admitted to by the offender.

He  stated  that, given the situation in this case, the  rate  of

recidivism would be over fifty percent.

          There   was  substantial  testimony  by  experts   with

personal  knowledge of the facts of this case and an expert  with

substantial  expertise  in sex offender treatment.  The  superior

courts  finding  beyond a reasonable doubt  that  placement  with

Jack  would  result in serious emotional damage to the  boys  was

therefore not clearly erroneous.

V.   CONCLUSION

          We AFFIRM the termination of Jacks parental rights.
_______________________________
     1     Pseudonyms have been used throughout this opinion  for
all family members.

     2     A.A. v. State, Div. of Family & Youth Servs., 982 P.2d
256, 259 (Alaska 1999).

     3    Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

     4    A.A., 982 P.2d at 259.

     5    Id.

     6     T.F.  v. State, Dept of Health & Soc. Servs., 26  P.3d
1089, 1092 (Alaska 2001).

     7    Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).

     8    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     9    25 U.S.C.  1912(d).

     10     N.A. v. State, Div. of Family & Youth Servs., 19 P.3d
597, 603 (Alaska 2001).

     11    A.A. v. State, Div. of Family & Youth Servs., 982 P.2d
256, 261 (Alaska  1999).

     12     A.M.  v.  State,  891 P.2d 815,  827  (Alaska  1995),
overruled  on other grounds, Matter of S.A., 912 P.2d 1235,  1239
(Alaska  1996);  see also A.B.M. v. M.H. & A.H., 651  P.2d  1170,
1173  (Alaska 1982) (holding that there was no compelling  reason
for implying a judicially created exception to ICWA).

     13    Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified as
amended  in scattered sections of 42 U.S.C.).  This provision  of
the federal act has been adopted in Alaska as AS 47.10.086(c)(1).

     14    Id. at  101.

     15     42 U.S.C.  671(a)(15)(D)(i) (2001).  We note that the
Alaska  Legislature has adopted this exception to the  reasonable
efforts  requirement in regard to children in need of aid  in  AS
47.10.086(c).

     16     Jack also argues on appeal that, by requiring him  to
admit  to  charges I through VIII of his criminal  indictment  in
order  to  prevent  the termination of his parental  rights,  the
state   violated   his   constitutional   right   against   self-
incrimination  and that the superior court erred  in  giving  the
state  time to comply with ICWA.  Because we hold that the  state
was  not  required to make active efforts, it is  unnecessary  to
reach these two issues.

     17    14 P.3d 946 (Alaska 2000).

     18    Id. at 953.

     19    Id.

     20    25 U.S.C.  1911(b) (2000) provides in relevant part:

          (b)  Transfer of proceedings; declination  by
          tribal court
               In  any  State court proceeding for  the
          foster  care placement of, or termination  of
          parental  rights  to,  an  Indian  child  not
          domiciled  or residing within the reservation
          of the Indian childs tribe, the court, in the
          absence of good cause to the contrary,  shall
          transfer  such proceeding to the jurisdiction
          of  the  tribe,  absent objection  by  either
          parent, upon the petition of either parent or
          the  Indian  custodian or the  Indian  childs
          tribe: Provided, That such transfer shall  be
          subject to declination by the tribal court of
          such tribe.
          
     21    AS 47.10.010(a).

     22    25 U.S.C.  1915(b) (2000) provides:

          (b)  Foster  care or preadoptive  placements;
          criteria; preferences
               Any  child accepted for foster  care  or
          preadoptive placement shall be placed in  the
          least   restrictive   setting   which    most
          approximates  a  family  and  in  which   his
          special needs, if any, may be met. The  child
          shall   also   be  placed  within  reasonable
          proximity  to  his or her home,  taking  into
          account  any special needs of the  child.  In
          any  foster care or preadoptive placement,  a
          preference shall be given, in the absence  of
          good  cause  to the contrary, to a  placement
          with
               (i)   a  member  of  the  Indian  childs
               extended family;
               (ii)  a  foster home licensed, approved,
          or specified by the Indian childs tribe;
               (iii) an Indian foster home licensed  or
          approved    by   an   authorized   non-Indian
          licensing authority; or
               (iv)   an   institution   for   children
          approved by an Indian tribe or operated by an
          Indian   organization  which  has  a  program
          suitable to meet the Indian childs needs.
          
     23    25 U.S.C.  1912(f) (2000) provides:

          (f)   Parental  rights  termination   orders;
          evidence; determination of damage to child
               No termination of parental rights may be
          ordered in such proceeding in the absence  of
          a determination, supported by evidence beyond
          a  reasonable  doubt, including testimony  of
          qualified   expert   witnesses,   that    the
          continued custody of the child by the  parent
          or  Indian  custodian is likely to result  in
          serious emotional or physical damage  to  the
          child.
          
     24     C.J. v. State, Dept of Health & Soc. Servs., 18  P.3d
1214, 1218 (Alaska 2001).