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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. S.B. v. State, Dept. of Health and Social Services (12/27/2002) sp-5653

S.B. v. State, Dept. of Health and Social Services (12/27/2002) sp-5653

     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@appellate.courts.state.ak.us.

            THE SUPREME COURT OF THE STATE OF ALASKA
                                
S.B.,                                                  )
                              )    Supreme Court No. S-10032
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    1JU-99-70 CP
                              )
STATE OF ALASKA,                        )    O P I N I O N
DEPARTMENT OF HEALTH &   )
SOCIAL SERVICES, DIVISION OF       )     [No. 5653 - December 27,
                                   2002]
FAMILY & YOUTH SERVICES,      )
                              )
             Appellee.                  )
________________________________)

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:  Roger D. Snippen,  Law  Offices
          of  Roger  D. Snippen, Juneau, for Appellant.
          Brad J. Brinkman, Assistant Attorney General,
          and   Bruce  M.  Botelho,  Attorney  General,
          Juneau, for Appellee.  Janine Reep, Assistant
          Public   Advocate  and  Guardian  Ad   Litem,
          Juneau,  and  Brant McGee,  Public  Advocate,
          Anchorage, for GAL.

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

          CARPENETI, Justice.
          EASTAUGH, Justice, concurring.





I.   INTRODUCTION

          The  superior court terminated the parental  rights  of

Sara  Blake1 to her son, Timothy.  Blake argues that the superior

court  lacked both subject matter and personal jurisdiction,  and

          erred in refusing to appoint her new counsel and in denying her

request  for  a  continuance.  Because  the  superior  court  had

subject  matter  jurisdiction under the  home state  jurisdiction

provision   of   the  Uniform  Child  Custody  Jurisdiction   and

Enforcement  Act  (UCCJEA),  we  reject  Blakes  first  argument.

Because   personal  jurisdiction  is  not  required  for   status

determinations  under  the  UCCJEA,  we  reject   Blakes   second

argument.   And because we conclude that her remaining  arguments

concerning  the  appointment  of new  counsel  and  denial  of  a

continuance  are  without  merit, we affirm  the  termination  of

Blakes parental rights.

II.  FACTS AND PROCEEDINGS

          Timothy  was  born to Sara Blake and John Williams2  in

1991  in  California.  Blake has an extensive  criminal  history,

including  multiple arrests for drug possession and prostitution.

Blake  has  failed  to  consistently care for  any  of  her  five

children   for  a  substantial  amount  of  time.    During   the

termination  proceeding,  Blake  admitted  that  she  has   spent

fourteen  years in prison out of the last seventeen.   Blake  has

had  a serious drug problem since the age of fourteen, well  over

twenty  years.   In  addition, Blake  has  been  investigated  on

numerous  occasions  over a period of thirteen  years  for  child

abuse and neglect.

          At  four  months of age, Timothy was removed  from  his

mothers  care  and  placed with his paternal  grandmother,  Laura

Iverson.   In  1992  the  Superior Court of California  appointed

Laura  to  be Timothys guardian and prohibited Blake and Williams

from  visiting  him.   Over the next five  years,  Lauras  health

declined,  and in November 1996 she sent the child to  Juneau  to

live with Lynne Bailey, Johns ex-wife and mother of Timothys  two

half-siblings.   In November 1997 Laura wrote a notarized  letter

purporting  to  transfer guardianship to Lynne.   Laura  died  in

1998.   Timothy has lived in Alaska with Lynne, her new  husband,

and his two half-siblings since 1996.

          The  Alaska  Department of Health and Social  Services,

Division  of Family and Youth Services (DFYS), filed a  Child  in

Need  of  Aid  (CINA) petition in October 1999.   Superior  Court

Judge  Patricia  A.  Collins  appointed  a  public  defender   to

represent  Blake  and appointed a guardian  ad  litem  (GAL)  for

Timothy.  The court adjudicated Timothy a child in need of aid in

February  2000  under AS 47.10.011 sections (1),  (2),  (9),  and

(10),3  and  committed him to the custody of DFYS in April  2000.

DFYS  filed  a petition to terminate Blakes parental rights,  and

the  court  did so in January 2001 after conducting a termination

trial in November 2000.

          Blake now appeals.

III. STANDARD OF REVIEW

          We  will overturn a factual finding in a CINA case only

if  it is clearly erroneous.4  A finding is clearly erroneous  if

it  leaves  us with a definite and firm conviction on the  entire

record that a mistake has been made. 5

          We  review  questions  regarding  both  subject  matter

jurisdiction   and   personal   jurisdiction    de    novo,    as

[j]urisdictional  issues are questions of  law  subject  to  this

courts independent judgment.6   Accordingly, this courts duty  is

to  adopt  the rule of law that is most persuasive  in  light  of

precedent, reason, and policy.7

          Parents   have   a  due  process  right  to   effective

assistance  of counsel in proceedings terminating their  parental

rights.8   Whether this due process right, such as the  right  to

effective assistance of counsel, has been violated is a  question

of law.9  As we examine questions of law under a de novo standard

of  review, we will adopt the rule of law that is most persuasive

in light of precedent, reason, and policy.10

          Refusals  to grant continuances are reviewed for  abuse

of  discretion.11   The  superior  courts  refusal  to  grant   a

continuance  will  be  upheld unless after  reviewing  the  whole

record, we are left with a definite and firm conviction that  the

          trial court erred.12

IV.  DISCUSSION

     A.   The  Trial  Court Had Jurisdiction To Terminate  Blakes
          Parental Rights to Timothy.
          
          1.   Subject matter jurisdiction
               
          1.   Blake claims the superior court lacked subject matter

jurisdiction to terminate her parental rights to Timothy.   Blake

concedes   that  the  superior  court  had  temporary   emergency

jurisdiction  over Timothy, but argues that the court  wrongfully

retained  jurisdiction for longer than necessary  to  ensure  his

safety.   The  superior  court did not address  the  question  of

Californias  jurisdiction,  holding only  that  [t]he  court  has

jurisdiction  over  the  parties and the subject  matter  of  the

proceeding  as  the  child resided in Alaska for  more  than  six

months preceding the initiation of [the] proceedings.13

          This    case    requires    us    to    consider    the

interrelationships  of two provisions of  the  UCCJEA.   We  must

first  determine  whether the superior courts  termination  order

modified  a  child custody determination made by  the  California

court,  which would require Alaska to have jurisdiction to modify

Californias  determination under AS 25.30.320.  If  the  superior

courts  termination  order  did not  modify  a  California  child

custody determination, we must then determine whether Alaska  had

jurisdiction  to make an initial custody determination  under  AS

25.30.300.

               a.   The superior courts order did not modify a California child
                    custody determination.
                    
          a.    Alaskas jurisdiction to modify the child  custody

determinations  of  other  states  is  severely  limited  by   AS

25.30.320.14    Because  that  statute  applies   only   to   the

modification  of  child custody determinations,  we  must  decide

whether   the  California  order  constituted  a  child   custody

determination.  Alaska Statute 25.30.909(3) defines that term as:

          a judgment, decree, or other order of a court
          providing  for  the  legal custody,  physical
          custody,  or  visitation with  respect  to  a
          child,   including  a  permanent,  temporary,
          initial, and modification order, except  that
          the  term  does not include an order relating
          to child support or other monetary obligation
          of an individual . . . .
          If   the   death   of   Timothys  guardian   terminated
Californias guardianship order, Californias original guardianship
determination   is  not  an  existing,  ongoing   child   custody
determination  capable of modification, and Alaskas  jurisdiction
is  not  limited by AS 25.30.320.  We look to California  law  to
determine  whether  the California order survived  the  death  of
Timothys  guardian.  Section 2630 of the California Probate  Code
provides that the relationship of guardian and ward is terminated
by  the  death  of either, but that the California court  retains
jurisdiction following such death for the purpose of settling the
accounts of the guardian or conservator or for any other  purpose
incident  to the enforcement of the judgments and orders  of  the
court  upon  such  accounts  or  upon  the  termination  of   the
relationship.15  But any order incident to the wrapping up of the
accounts  of  the guardian under Section 2630 of  the  California
Probate  Code  would not be an order providing for the  legal  or
physical  custody of the child or visitation, and thus could  not
constitute  a  child  custody determination under  AS  25.30.320.
Accordingly,  we  conclude that with the death  of  the  guardian
there was no existing child custody determination.
          Alternatively,  California might have resuscitated  its
earlier child custody order by using its power to appoint  a  new
guardian.   Construing the predecessor statute to section 2630, a
California  court in In re Estate of Mims16 held that  while  the
death   of   a  guardian  automatically  revokes  that  guardians
appointment,  the  court  may  appoint  a  new  guardian  without
specifically  terminating the first guardianship.17   But  In  re
Estate  of  Mims  limited  this  holding  by  stating  that   the
guardianship  continues, but a new guardian must be  appointed.18
As   previously  described,  the  Superior  Court  of  California
          appointed Laura Iverson as Timothys guardian in 1992, and she
died  in  April  1998.  The order contains no provision  covering
this  situation,  and California did not act  to  appoint  a  new
guardian.  Because California did not appoint a new guardian, its
child  custody  determination ended with the  death  of  Timothys
guardian.
          Finally, it might be argued that the California  courts
no-contact  order constituted a child custody determination.   We
reject  that  argument, because AS 25.30.909(3), in defining  the
phrase, specifies only affirmative custodial orders, rather  than
orders merely precluding contact.
          California  law  also  supports  the  conclusion   that
California  did not possess modification jurisdiction  under  its
Uniform   Child  Custody  Jurisdiction  Act  (UCCJA),  which   is
applicable  because it was in effect as of October  1999,19  when
this   suit  was  filed.20   Californias  UCCJA21  provided  that
California  had neither initial nor modification jurisdiction  if
it was no longer the home state of the child and no longer had  a
significant connection to the child.22  In determining  its  home
state  jurisdiction, California looks to where the children live,
where the most evidence of their daily living conditions will  be
found,  where  the  continuity and stability  of  their  parental
relationship and their daily routines will be least disrupted  by
the   legal  procedure.  .  .  .[]  The  childrens  home  is  the
presumptively correct forum.23  Under this test, it is clear that
California  did  not  maintain home  state  jurisdiction  because
Timothy  had  been living in Alaska for almost three  years,  all
evidence  of his daily living conditions was in Alaska,  and  his
daily  routine and stability could only be maintained in  Alaska.
Likewise,  California no longer possessed significant  connection
jurisdiction under Californias best interest of the  child  test,
which  does  not  allow jurisdiction  unless it  is  demonstrated
[that]  the  child  and at least one parent  have  a  significant
connection  with  [California] and that  there  is  available  in
California  substantial evidence concerning the childs  care  and
relationships with others. 24  Because Timothy has had  virtually
          no connection with California, that state did not possess
significant  connection jurisdiction to modify its initial  child
custody  determination.  As a result, California  no  longer  had
modification  jurisdiction under its  UCCJA,  and  there  was  no
ongoing  child custody determination that would restrict  Alaskas
exercise   of   jurisdiction  by  limiting  it  to   the   narrow
modification jurisdiction of AS 25.30.320.
               b.   Alaska properly exercised initial child custody jurisdiction
                    as Timothys home state.
          a.   We turn next to the question whether Alaska properly
exercised  initial  child custody jurisdiction.   Alaska  Statute
25.30.300(a)25 sets out the circumstances under which a court  of
this  state  has  jurisdiction to make an initial  child  custody
determination.   The  superior court asserted jurisdiction  under
subsection  (1):  if . . . this state is the home  state  of  the
child  on the date of the commencement of the proceedings.   That
decision was correct if Alaska was Timothys home state when  this
proceeding was commenced in October 1999.  Accordingly,  we  must
determine  whether Alaska meets the definition of  a  home  state
under AS 25.30.309(7).26
          For  purposes of this discussion, the statute  contains
two  requirements: that the child have been present in this state
for  at  least six consecutive months before the commencement  of
the  action, and that the child have been here with a  parent  or
[a] person acting as a parent.  Timothy was here for almost three
years  before  the  action was filed, so  the  only  question  is
whether Lynne Bailey was a person acting as a parent.  To  answer
that  question,  we must look to the definition  of  that  phrase
under AS 25.30.909(13).27
           That  statute too contains two requirements  that  are

relevant to this case: that the person have had physical  custody

of  the  child  for  at least six consecutive months  before  the

commencement of the action and that the person claim a  right  to

legal custody under the laws of this state.  Physical custody  is

defined  in AS 25.30.909(14) as the physical care and supervision

of  a  child.   We believe that physical custody as  used  in  AS

25.30.909(13),  therefore, refers to de facto, as  distinct  from

legally  awarded or de jure, authority for the physical care  and

supervision  of  a  child.  By contrast,  legal  custody  in  the

statute refers to legally awarded, or de jure, authority for some

aspect of the childs care.

          Using  these  terms as so understood,  Bailey  has  had

physical  custody over Timothy since November 1996, almost  three

consecutive  years  before the commencement of  this  proceeding.

Thus the only remaining question is whether she claims a right to

legal custody under the laws of this state.

          Literally, Bailey has made such a claim since she seeks

to  adopt  Timothy.  But we think that the statute also  requires

that  a  claim  of a right to legal custody be at  least  legally

plausible.   That  is  the case here, for Alaska  recognizes  the

rights  of nonparents to exercise legal custody of children  over

the competing claims of parents when the welfare of the child  so

requires, upon a showing that it clearly would be detrimental  to

the  child to permit the parent to have custody.28  That standard

is  at  least  plausibly satisfied under the facts of  this  case

given  Blakes personal circumstances, the fact that  Timothy  has

not  lived  with her since infancy, and the fact that Bailey  had

been  exercising  physical custody of Timothy  for  almost  three

years before the present action was filed.

          In  consideration  of the foregoing, we  conclude  that

Lynne  Bailey has physical custody of Timothy and claims a  right

to his legal custody in the sense meant by the statute.  She thus

qualifies as a person acting as a parent under AS 25.30.909(13).

          It  follows that the superior court had subject  matter

jurisdiction  to  adjudicate  the states  petition  to  terminate

Blakes parental rights under AS 25.30.300(a)(1).  Finally,  since

California  no  longer  had  jurisdiction  and  Alaska  did  have

jurisdiction, the exercise of jurisdiction by the superior  court

was proper under the Parental Kidnaping Prevention Act.29

          2.   Personal jurisdiction

          Blake  also  argues  that  the  superior  court  lacked

jurisdiction over her personally because she had no contacts with

Alaska,  much  less  minimum contacts.  DFYS  argues  that  under

Alaska Civil Rule 12(h) Blake waived any objection regarding  the

lack  of personal jurisdiction by failing to raise this issue  as

required  by Civil Rule 12(b).30  But Blake stated at a  December

1999  status  conference  that  I  dont  even  think  Alaska  has

jurisdiction because [indiscernible] California does.   She  also

stated  at  the April 2000 CINA disposition hearing that  Timothy

should not be in the custody of the state of Alaska because  [h]e

has  no family ties up there and that she was his parent and  she

was  in  California.   We  conclude that  these  assertions  were

sufficient to raise the issue.

          As   a   general   rule,  a  forum  may  not   exercise

jurisdiction  over  a  non-consenting party consistent  with  the

requirements of due process unless that party has certain minimum

contacts  with  the forum state.31  This usually means  that  the

party  must  purposefully  avail[] itself  of  the  privilege  of

conducting  activities within the forum State, thus invoking  the

benefits and protections of its laws.32  There is no question that

Blake  has  not purposefully availed herself of the  benefits  of

Alaskas laws.  But because this case falls under an exception  to

the  general rule, Alaskas power to terminate her parental rights

does  not  depend upon her contacts with Alaska at  all,  but  on

Alaskas contacts with her child, Timothy.

          In Shaffer v. Heitner,33 the United States Supreme Court

expanded  the  minimum contacts rule to cover almost  all  cases,

whether labeled in rem, quasi in rem, or in personam.34  But  the

Court  recognized that this single standard could not accommodate

some   necessary  litigation,35  and  recognized   that   certain

jurisdictional rules, such as the particularized rules  governing

adjudication of status, are not inconsistent with the standard of

fairness.36  The majority of courts that have addressed the issue

          have held that child custody proceedings conducted under the

jurisdictional  rules  of the UCCJA fit  within  Shaffers  status

exception, meaning that personal jurisdiction over non-consenting

parties  is not required.37  Likewise, numerous courts that  have

considered whether termination proceedings fit within the  status

exception have held that they do.38  The reasoning of both sets of

cases is persuasive, and both apply here.39  Accordingly, we hold

that  Blakes due process rights were not violated by the superior

courts assertion of jurisdiction over her in spite of her lack of

contacts with Alaska.

     B.   The  Superior Court Did Not Err in Refusing To  Appoint
          New Counsel.
          
          The  superior  court  appointed a  public  defender  to

represent  Blake  at the first hearing in this case.   At  nearly

every   subsequent  hearing  Blake  complained  that  the  public

defender   was  ineffective  and  asked  the  court  to   appoint

substitute  counsel  or to allow her to represent  herself.   The

superior  court allowed her to represent herself pro se from  the

February  2000  adjudication forward.  The  court  construed  her

complaints as ineffective assistance claims and rejected them  on

at least three occasions, refusing to appoint new counsel.  After

determining  that Blake was competent to represent  herself,  the

court asked the public defender to continue to participate in the

proceedings as advisory counsel.

          Blake  argues that the trial court erred in failing  to

appoint  substitute counsel.  She argues that the public defender

did  not raise the jurisdictional issues discussed above, did not

assist her in subpoenaing witnesses, and did not communicate with

her generally.

          First,  we  recognize  the general  rule  that  pro  se

defendants  may  not raise ineffective assistance claims  against

advisory counsel.40  The only exception to this rule occurs  when

the  advisory  counsel oversteps his limited role and  assumes  a

degree  of  control consistent with legal representation.41   But

Blakes complaint is that the public defender did too little,  not

          too much.  Thus, from the moment she decided to represent herself

she  lost the right to claim that any subsequent acts of advisory

counsel constituted ineffective assistance.

          As  to  the  public defenders decisions  prior  to  his

dismissal by Blake, we conclude that they did not fall below  the

  range of reasonable actions which might have been taken  by  an

attorney  skilled  in the . . . law. 42  Blake  claims  that  the

public   defender  failed  to  prepare  subpoenas  for  reluctant

witnesses, but at trial Blake admitted that she had not given her

witness  list  to the public defender because she did  not  trust

him.   The public defender stated that she eventually gave him  a

list  of  witnesses, but they were all already  scheduled  to  be

called by the state.

          Blake  further claims that the public defender did  not

return her calls or make sufficient attempts to communicate  with

her,  but  the  public defender related the contents  of  several

conversations he had with her.  The trial court was in  the  best

position  to  evaluate  these  fact-intensive  claims,  and   its

conclusions appear to be reasonable.  We find no error here.

          Finally,  the  public defenders failure  to  raise  the

jurisdictional   issues  now  argued  on   appeal   is   likewise

insufficient for an ineffective assistance claim.  As  we  stated

in  Risher, [l]awyers may display a wide spectrum of ability  and

still  have their performance fall within the range of competence

displayed by one of ordinary training and skill.43  While we doubt

that  this  standard was breached here, we need  not  decide  the

issue,   for   Rishers  second  requirement  for  an  ineffective

assistance  claim  is  a  showing that  the  lack  of  competency

contributed  to the adverse result.44  Blake admits  that  it  is

highly  unlikely  the  end  result for [Blake]  would  have  been

different  under California law had the court ruled  that  Alaska

lacked  subject  matter  jurisdiction to terminate  her  parental

rights.   Thus,  Blake  surrendered  the  second  prong  of   her

ineffective  assistance  claim,  and  cannot  prevail  upon   it.

          Accordingly, the trial court did not err in declining to appoint

new counsel for Blake.

     C.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Failing To Grant Blakes Requests for Continuances.
          
          Following  the trial courts suggestion, Blake requested

a   continuance  at  the  outset  of  the  February   2000   CINA

adjudication trial to give herself more time to locate witnesses.

The  state requested that it go forward with testimony from three

witnesses  already scheduled to participate that day.  The  trial

court  granted this request, and decided to hold the  continuance

issue  in abeyance over the weekend, stating that it would resume

consideration  of  the issue if Blake was unable  to  locate  her

witnesses  in  that  time.  Blake did not renew  her  continuance

request the next week.  She now argues it was error not to  grant

her initial request, but does not explain why she failed to renew

her request as suggested by the court.  The actions undertaken by

the superior court were not an abuse of discretion.

          Blake  also  requested a continuance at a  November  3,

2000  status conference, three days before the termination  trial

was scheduled to begin.  Blake explained that she just got out of

prison.   I  had  to go for a dryout that was unexpected.   As  a

result,  she  had not had time to prepare for trial.   The  trial

court  explained  that the termination trial had been  calendered

for  months,  and  refused the request.  Again,  Blake  does  not

explain  how  the  court erred in denying her request.   As  DFYS

explains, all CINA cases are extremely time-sensitive, and  Blake

offers  no reason why her lack of preparation required the  court

to  take  the extraordinary measure of rescheduling a trial  less

than  three  days before it was set to begin.  We hold  that  the

superior   court  did  not  err  in  failing  to   grant   Blakes

continuances.

V.   CONCLUSION

          We  hold that the superior court had jurisdiction  over

the  termination  proceedings, that Blakes claim for  ineffective

assistance  of counsel has no merit, and that the superior  court

did   not   err   in  refusing  to  grant  Blakes   continuances.

Accordingly, we  AFFIRM the decision of the superior court in its

entirety.

EASTAUGH, Justice, concurring.

          I  concur  in  the  result the court  reaches  and  the
reasoning it employs, because appellant has not demonstrated  the
existence of any California decree which satisfies the definition
of child custody determination contained in AS 25.30.909(3).  The
order  appointing  Laura  Iverson as Timothys  guardian  did  not
otherwise  award legal or physical custody of the  child  to  any
other  person or entity, or create in the abstract a guardianship
that  would  survive the death of the guardian.  It is  therefore
correct  to  conclude  that Laura Iversons death  terminated  the
order  that  made  her Timothys guardian, the  only  order  which
appellant has brought to our attention in arguing that Alaska has
no jurisdiction.
_______________________________
     1     Pseudonyms  have  been  used for  all  family  members
involved in this case.

     2     Timothys  father relinquished his parental  rights  in
April 2000 and he is not a party to this appeal.

     3    AS 47.10.011 provides in relevant part:
          
          [T]he court may find a child to be a child in
          need of aid if it finds by a preponderance of
          the   evidence  that  the  child   has   been
          subjected to any of the following:
               (1)  a  parent or guardian has abandoned
          the  child as described in AS 47.10.013,  and
          the  other  parent is absent or has committed
          conduct or created conditions that cause  the
          child to be a child in need of aid under this
          chapter;
               (2) a parent, guardian, or custodian  is
          incarcerated, the other parent is  absent  or
          has  committed conduct or created  conditions
          that cause the child to be a child in need of
          aid  under this chapter, and the incarcerated
          parent has not made adequate arrangements for
          the child;
               . . . .
               (9) conduct by or conditions created  by
          the   parent,  guardian,  or  custodian  have
          subjected the child or another child  in  the
          same household to neglect;
               (10) the parent, guardian, or custodians
          ability  to  parent  has  been  substantially
          impaired by the addictive or habitual use  of
          an  intoxicant, and the addictive or habitual
          use  of  the  intoxicant has  resulted  in  a
          substantial risk of harm to the child;  if  a
          court has previously found that a child is  a
          child  in  need of aid under this  paragraph,
          the  resumption of use of an intoxicant by  a
          parent,  guardian,  or custodian  within  one
          year  after  rehabilitation  is  prima  facie
          evidence  that  the  ability  to  parent   is
          substantially impaired and the  addictive  or
          habitual  use of the intoxicant has  resulted
          in a substantial risk of harm to the child as
          described in this paragraph[.]
          
     4    In re S.A., 912 P.2d 1235, 1237 (Alaska 1996).

     5     Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998) (quoting
R.F. v. S.S., 928 P.2d 1194, 1196 n.2 (Alaska 1998)).

     6     McCaffery  v.  Green, 931 P.2d 407,  408  n.3  (Alaska
1997).

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

     8    V.F. v. State, 666 P.2d 42, 47-48 (Alaska 1983).

     9     D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 207 (Alaska 2000).

     10    Guin v. Ha, 591 P.2d at 1284 n.6.

     11     Gregoire  v.  Natl Bank of Alaska, 413  P.2d  27,  33
(Alaska 1966).

     12     Nelson-Lizardi v. Lizardi, 49 P.3d 236,  239  (Alaska
2002).

     13     By this holding the superior court may have meant  to
imply  that  Alaska, as Timothys home state, had jurisdiction  to
make  an  initial custody determination under AS 25.30.300(a)(1).
While  we agree that Alaska had initial custody jurisdiction,  it
is necessary first to determine whether California had continuing
modification jurisdiction.

     14    AS 25.30.320 states:
          Except as otherwise provided in AS 25.30.330,
          a  court of this state may not modify a child
          custody  determination made  by  a  court  of
          another  state unless a court of  this  state
          has   jurisdiction   to   make   an   initial
          determination under AS 25.30.300(a)(1),  (2),
          or  (3)  and     (1) the court of  the  other
          state  determines it no longer has exclusive,
          continuing   jurisdiction  under   provisions
          substantially similar to AS 25.30.310 or that
          a  court  of  this  state  would  be  a  more
          convenient     forum     under     provisions
          substantially similar to AS 25.30.360; or    (2) a court of this
          state or a court of the other state determines that neither the
          child, nor a parent, nor a person acting as a parent presently
          resides in the other state.
          
     15    Cal. Prob. Code  2630 (West 2002).

     16    20 Cal. Rptr. 667 (Cal. App. 1962).

     17    Id. at 671.

     18    Id.

     19     California adopted the UCCJEA, replacing  the  UCCJA,
effective  January  1, 2000.  Uniform Child Custody  Jurisdiction
and  Enforcement Act, Stats. 1999, ch. 867 (S.B. 1999)  (codified
as  amended  at Cal. Fam. Code  3400); In re Nada  R.,  108  Cal.
Rptr.  2d  493, 499 (Cal. App. 2001) (explaining that  California
adopted the UCCJEA, formerly UCCJA, in January of 2000).

     20     DFYS filed and served Timothys father with a child in
need  of aid petition on October 1, 1999 and amended the petition
to include Blake on October 14, 1999.

     21     Cal.  Fam. Code  3403 (repealed 1999) (formerly  Cal.
Civ. Code  5152) read in relevant part:

          (a)  A court of this state which is competent
          to   decide   child   custody   matters   has
          jurisdiction   to   make  a   child   custody
          determination  by  initial  or   modification
          decree if the conditions as set forth in  any
          of the following paragraphs are met:
               (1) This state (A) is the home state  of
          the  child at the time of commencement of the
          proceeding,  or (B) had been the childs  home
          state  within  six months before commencement
          of  the  proceeding and the child  is  absent
          from  this  state because of his  removal  or
          retention by a person claiming his custody or
          for  other  reasons, and a parent  or  person
          acting  as parent continues to live  in  this
          state.
               (2) It is the best interest of the child
          that   a   court   of   this   state   assume
          jurisdiction  because (A) the child  and  his
          parents,  or  the  child  and  at  least  one
          contestant,  have  a  significant  connection
          with  this  state, and (B) there is available
          in this state substantial evidence concerning
          the    childs   present   or   future   care,
          protection,     training,    and     personal
          relationships.
          
     22     In  re  Marriage of Steiner, 152 Cal. Rptr. 612,  617
(Cal.   App.  1979)  (applying  California  Civil  Code   section
5152(1)(a)-(b)  to  deny  Californias  jurisdiction   to   modify
Colorados   modification   of   a   California   child    custody
determination).

     23     In re Marriage of Newsome, 80 Cal. Rptr. 2d 555,  560
(Cal. App. 1998) (quoting Hafer v. Superior Court, 179 Cal. Rptr.
132,  137 (Cal. App. 1981) (in which the court applied California
Civil  Code  section 5152 to determine that neither initial  home
state   nor   significant  connection  jurisdiction  existed   in
California where the mother and children had lived in  Texas  for
the  three  years prior to the commencement of the child  custody
proceeding)).

     24     Id. at 561 (quoting Plas v. Superior Court, 202  Cal.
Rptr. 490, 494 (Cal. App. 1984)).

     25    AS 25.30.300(a) states:

          Except as otherwise provided in AS 25.30.330,
          a  court  of  this state has jurisdiction  to
          make  an  initial child custody determination
          only if
               (1)  this state is the home state of the
          child on the date of the commencement of  the
          proceeding;
               (2) this state was the home state of the
          child   within   six   months   before    the
          commencement of the proceeding and the  child
          is  absent  from this state but a  parent  or
          person  acting as a parent continues to  live
          in this state;
               (3)  a  court of another state does  not
          have     jurisdiction    under     provisions
          substantially similar to (1) or (2)  of  this
          subsection, or a court of the home  state  of
          the    child   has   declined   to   exercise
          jurisdiction on the ground that this state is
          the  more  appropriate forum under provisions
          substantially  similar  to  AS  25.30.360  or
          25.30.370, and
                    (A)   the  child  and  the   childs
          parents, or the child and at least one parent
          or  a  person  acting as  a  parent,  have  a
          significant connection with this state  other
          than mere physical presence; and
                    (B)    substantial   evidence    is
          available in this state concerning the childs
          care,   protection,  training,  and  personal
          relationships;
               (4) all courts having jurisdiction under
          the  criteria  specified in (1)-(3)  of  this
          subsection   have   declined   to    exercise
          jurisdiction on the ground that  a  court  of
          this  state is the more appropriate forum  to
          determine  the  custody of  the  child  under
          provisions   substantially  similar   to   AS
          25.30.360 or 25.30.370; or
               (5) no court of another state would have
          jurisdiction under the criteria specified  in
          (1)-(4) of this subsection.
          
     26    AS 25.30.909(7) defines home state as:

          [t]he  state  in which a child lived  with  a
          parent or a person acting as a parent for  at
          least  six consecutive months, including  any
          temporary absences of the child or parent  or
          person acting as a parent, immediately before
          the   commencement   of   a   child   custody
          proceeding,  except that, in the  case  of  a
          child who is less than six months of age, the
          term means the state in which the child lived
          from birth with any of the persons mentioned,
          including any temporary absences.
          
     27    AS 25.30.909(13) states that person acting as a parent
means a person, other than a parent, who
               (A)  has physical custody of a child  or
          has  had physical custody for a period of six
          consecutive   months,   including   temporary
          absence,  within one year immediately  before
          the   commencement   of   a   child   custody
          proceeding;  and      (B)  has  been  awarded
          legal custody by a court or claims a right to
          legal custody under the law of this state[.]
          
     28    Turner v. Pannick, 540 P.2d 1051, 1054 (Alaska 1975).

     29    28 U.S.C.   1738A states in pertinent part:

               (a) The appropriate authorities of every
          State  shall enforce according to its  terms,
          and  shall  not modify except as provided  in
          subsections  (f),  (g),  and  (h)   of   this
          section,   any   custody   determination   or
          visitation  determination  made  consistently
          with  the  provisions of this  section  by  a
          court of another State.
               . . . .
               (f)  A  court  of a State may  modify  a
          determination  of  the custody  of  the  same
          child made by a court of another State, if
                    (1)  it  has jurisdiction  to  make
          such a child custody determination; and
                    (2) the court of the other State no
          longer  has jurisdiction, or it has  declined
          to  exercise such jurisdiction to modify such
          determination.
               (g)   A  court  of  a  State  shall  not
          exercise jurisdiction in any proceeding for a
          custody or visitation determination commenced
          during  the  pendency of a  proceeding  in  a
          court  of  another State where such court  of
          that  other  State is exercising jurisdiction
          consistently  with  the  provisions  of  this
          section  to  make  a  custody  or  visitation
          determination.
               (h) A court of a State may not modify  a
          visitation determination made by a  court  of
          another  State unless the court of the  other
          State  no  longer has jurisdiction to  modify
          such   determination  or  has   declined   to
          exercise   jurisdiction   to   modify    such
          determination.
          
     30     Morrow  v.  New Moon Homes, Inc., 548 P.2d  279,  294
(Alaska   1976)  (stating  that  defense  of  lack  of   personal
jurisdiction  must  be  pleaded on answer  or  by  motion  or  be
waived).

     31    Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

     32    Hanson v. Denckla, 357 U.S. 235, 253 (1958).

     33    433 U.S. 186 (1977).

     34    Id. at 212.

     35    Id. at 201.

     36    Id. at 208 n.30.

     37     Balestrieri v. Maliska, 622 So. 2d 561, 562-64  (Fla.
Dist.    App.   1993)   (collecting   cases   sustaining   status
adjudications in the absence of personal jurisdiction); David  J.
Benson,  Can  a  Case Be Made for the Use of  the  Uniform  Child
Custody  Jurisdiction  Act in Child Support  Determinations?,  26
Gonz.  L. Rev. 125, 134 n.6 (1990) (collecting cases).  We  noted
this  trend in McCaffery v. Green, 931 P.2d 407, 413 n.14 (Alaska
1997), but did not need to reach the issue.

     38     In  re  Appeal in Maricopa County, 543 P.2d 454,  459
(Ariz.  App. 1975);  In re M.L.K., 768 P.2d 316, 319  (Kan.  App.
1989); Wenz v. Schwartze, 598 P.2d 1086, 1092 (Mont. 1979); In re
Adoption of Copeland, 43 S.W.3d 483, 487 (Tenn. App. 2000);
White  v.  Blake,  859 S.W.2d 551, 564 (Tex. App.  1993);  In  re
M.S.B., 611 S.W.2d 704, 706 (Tex. App. 1980).

     39    The UCCJEA, which replaced the UCCJA in Alaska in 1999,
governs  Alaskas assumption of jurisdiction in all child  custody
determinations,  AS  25.30.300(a) & .330(a) (providing  exclusive
bases  for  assertion  of  subject matter  jurisdiction  to  make
initial   custody  determination),  and  defines  child   custody
proceeding  to  include CINA and termination of  parental  rights
proceedings.  AS 25.30.909(4).  See also E.H. v. State,  Dept  of
Health & Soc. Servs., 23 P.3d 1186, 1191 (Alaska 2001).

     40    E.g., Downey v. People, 25 P.3d 1200, 1203 (Colo. 2001)
(collecting cases).

     41    Id. at 1204 (collecting cases).

     42     P.M. v. State, Dept of Health & Soc. Servs., Div.  of
Family  &  Youth  Servs.,  42  P.3d  1127,  1131  (Alaska   2002)
(alterations  in  original); see also Risher v. State,  523  P.2d
421, 424 (Alaska 1974).

     43    Risher, 523 P.2d at 424.

     44    Id. at 425.