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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. M.L.L. v. State, Dept. of Health and Social Services (12/31/2002) sp-5654

M.L.L. v. State, Dept. of Health and Social Services (12/31/2002) sp-5654

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA,                        )
DEPARTMENT OF HEALTH &   )    Supreme Court No. S-10450
SOCIAL SERVICES, DIVISION OF  )
FAMILY & YOUTH SERVICES,           )    Superior Court No.
                              )    1JU-97-65 & 66A CP
             Appellant,                      )
                              )    O P I N I O N
     v.                       )
                              )    [No. 5654 - December 31, 2002]
M.L.L.,                                                )
                              )
             Appellee.                  )
_______________________________    )

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Larry R. Weeks, Judge.

          Appearances:   Jan  A. Rutherdale,  Assistant
          Attorney   General,  and  Bruce  M.  Botelho,
          Attorney   General,  Juneau,  for  Appellant.
          Robert F. Meachum, Assistant Public Defender,
          Juneau,   and   Barbara  K.   Brink,   Public
          Defender, Anchorage, for Appellee.

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

          CARPENETI, Justice.






I.   INTRODUCTION

          The  superior court denied a petition to terminate  the

parental  rights of Melanie Lewis1 (M.L.L.) to her two  children,

Teresa  Hanson and Kelly Hanson.  The State of Alaska, Department

of  Health  and  Social Services, Division of  Family  and  Youth

          Services appeals, claiming that the superior court erred by (1)

not  considering  the  emotional harm that  would  be  caused  by

breaking  the bonds between the children and their foster  mother

and  (2) not finding beyond a reasonable doubt that returning the

children to their mother would likely result in serious emotional

or  physical  damage.  Because the superior court properly  found

that there was insufficient evidence to prove beyond a reasonable

doubt  that  the  children would be harmed by being  returned  to

Lewis,  we  affirm  that courts decision  not  to  terminate  her

parental rights.

II.  FACTS AND PROCEEDINGS

     A.   Facts and Proceedings in the 1999 Termination Trial

          This  case involves the termination of Lewiss  parental

rights to her two daughters: Teresa and Kelly.2  Lewis and her ex-

husband,  Arnold Hanson,3 met in Juneau in 1991, where they  were

both  undergoing  treatment  with the  Juneau  Alliance  for  the

Mentally  Ill (JAMI).  They had their first daughter, Teresa,  in

Anchorage  in 1995.4  Their second daughter, Kelly, was  born  in

October 1996 in Juneau.5

          In  July  1997  the state petitioned for  and  received

temporary custody under the statutes governing children  in  need

of  aid  (CINA) and the Indian Child Welfare Act (ICWA).6   After

several   unsuccessful  attempts  to  place  the  children   with

relatives  or  native  families, Teresa and  Kelly  were  finally

placed  with a non-native, licensed foster parent.7   The  foster

parent is a special education teacher, and has indicated that she

wants to adopt the children.8

          The  state  then petitioned to terminate  the  parental

rights  of  both  Arnold Hanson and Lewis  in  1999.   They  were

adjudicated  Children  in  Need of Aid  in  both  the  July  1997

temporary  custody  determination and  the  1999  termination  of

parental rights decision for a number of reasons.

          Teresa  and Kelly were found to be children in need  of

aid  under  AS 47.10.011(11).9  Specifically, the superior  court

          found that Lewis was diagnosed with schizo-affective disorder,

post-traumatic  stress  disorder, and  mild  mental  retardation.

Lewiss  emotional  disorders ranged  from  suicide  attempts  and

ideation  to  irritable moods and poor tolerance for frustration.

These disturbances appeared to be partially caused or exacerbated

by  Lewis  being overwhelmed by the constant daily  pressures  of

homelessness, her husbands illness, and the routine care  of  her

children.

          The children were also found to be children in need  of

aid  under  AS  47.10.011(10)  because  Lewiss  habitual  use  of

intoxicants impaired her ability to parent.10  Between  1997  and

1998,  after  the  children were removed to  foster  care,  Lewis

resumed  drinking  after a period of apparent  sobriety.   During

this  period  police  witnessed her in a state  of  intoxication,

sometimes  severe, on at least three occasions.  In one incident,

a  police officer, while responding to a report of a fight at the

couples residence, found beer cans everywhere and Lewis extremely

intoxicated.

          The  children  were  also found to  be  CINA  under  AS

47.10.011(8)(B)(iii) because their repeated exposure to  domestic

violence placed them at substantial risk of mental injury.11   On

one  occasion Hanson almost hit Lewis and Teresa with a  backpack

while  Lewis was holding Teresa.  On another occasion a  physical

altercation  between Hanson and Lewis in front  of  the  children

left them in a state of extreme distress.

          The  children  were  also found to  be  CINA  under  AS

47.10.011(9)  because  of  neglect by Hanson  and  Lewis.12   The

parents  failed to feed and clothe their children  adequately  on

several  occasions.  Additionally, Hanson and Lewis  irrationally

removed  their children from the security of Juneaus  Glory  Hole

shelter  and  their trailer on separate occasions  to  spend  the

night  outside  because they did not feel safe  in  those  secure

places.   The couple also failed to provide adequately for  their

childrens  health,  as  both children were  constantly  sick  and

          Kellys serious health problems (pneumonia and seizures) were only

treated  due to the intervention of third parties.  Additionally,

the  children  were  not bathed regularly and  the  house  lacked

toothbrushes, towels, soap, shampoo, and toilet paper  for  them.

The  children  were assessed as having significant  developmental

delays   in  1997,  and  one  expert  said  that  the  neglectful

environment put them at high risk of developmental delay.

          After  Teresa  and Kelly were placed with their  foster

parent,  Lewis  continued to exhibit problematic behavior  for  a

relatively  short period of time.  At one point Lewis and  Hanson

cashed  an agency check, meant to provide for the cost of a  trip

to  visit their children, in order to buy alcohol.  Additionally,

the  children  suffered from serious regression after  visits  by

Lewis  and  Hanson in December 1997 and April 1998.  By  mid-1998

Lewis  made  some improvements in her ability to care for  Teresa

and  Kelly  by ending her relationship with Hanson, stopping  her

use  of  alcohol, and beginning a relationship with Ron Lewis,  a

stable man who does not drink.

          In  1999, based on the above facts, the superior  court

terminated  the parental rights of Hanson, a decision  that  this

court affirmed in A.H. v. State.13  In that decision the superior

court also found that

          there  is clear and convincing evidence  that
          [Melanie  Lewis] failed, within a  reasonable
          time,  to  remedy the conduct and  conditions
          that  place the children at substantial  risk
          so  that returning the children to the parent
          would place the children at substantial  risk
          of physical or mental injury.
          
          Nonetheless,  the superior court held  that  the  state

failed  to prove beyond a reasonable doubt, as required  for  the

termination of parental rights under the ICWA,14 that the children

would sustain serious emotional or physical damage if returned to

their  mother.  The court based this finding on Lewis having  her

substance abuse under control, living with Ron Lewis, and  making

more intelligent decisions such as avoiding Hanson.  The superior

          court also held a visitation and placement hearing in September

1999  in  which  it  ultimately ordered  visitation  between  the

children  and their mother under the supervision of the  maternal

grandparents.   The  state  did not appeal  the  superior  courts

decision.

     B.   Facts  and  Proceedings Between  the  1999  Termination
          Trial and the Current Trial
          
          Between the 1999 termination trial and this proceeding,

Lewis  made significant progress.  The superior court found  that

she  was  clean  and  sober  for the additional  two-year  period

between  the 1999 termination proceeding and the current  action.

She  also  maintained a stable marriage with Ron Lewis,  her  new

husband,  free  of  the  domestic violence  that  endangered  the

children  during  her  marriage to  Hanson.   Her  mental  health

improved to the point where she was not being actively treated by

JAMI  and her conservatorship was terminated.  Lewis visited  her

children  on four occasions between August 2000 and October  2001

and   fulfilled   the  requirements  of  her  DFYS   case   plan.

Additionally, the social workers visits, including at  least  one

unannounced visit, revealed a clean apartment with no evidence of

alcohol use or domestic violence.

          Teresa  and Kelly have lived with their current  foster

mother  in  Sitka since December 1997.  According to  Dr.  Sheila

Clarson, a child psychologist who conducted an assessment of  the

childrens interactions with their mother, grandmother, and foster

mother,  the  children have developed significant attachments  to

their foster mother during the more than four years in which they

have  lived  with her.  Dr. Clarson also testified that  severing

these bonds between the children and their foster mother would be

traumatic  and  might  lead  to  a number  of  psychological  and

developmental problems.

          Despite  Lewiss  substantial progress  since  the  1999

trial   in  which  the  superior  court  found  that  there   was

insufficient evidence to terminate her parental rights, the state

filed  a  second petition to terminate Lewiss parental rights  in

July  2001.   Following  trial held on October  29-31,  2001  the

superior  court again found, based upon the above evidence,  that

it  would  be in the childrens best interest to terminate  Lewiss

parental  rights  and allow them to be adopted  by  their  foster

mother.   But  the superior court again could not find  beyond  a

reasonable doubt that returning the children to the mother  would

likely result in serious emotional or physical damage.  The court

therefore denied the states petition to terminate Lewiss parental

rights  under the ICWA.15  The court also continued the childrens

placement  with  their  foster mother and noted  that  visitation

between  the  children and both Lewis and her  parents  had  been

hampered  by the foster mother and must be improved.   The  state

appeals  the  superior  courts decision to  deny  termination  of

Lewiss parental rights.

III. STANDARD OF REVIEW

          We  uphold the superior courts factual findings  unless

they  are clearly erroneous.16  Factual findings are held  to  be

clearly erroneous if a review of the entire record leaves us with

the definite and firm conviction that a mistake has been made.17

          Whether  the superior courts findings comport with  the

requirements  of  ICWA involves a question of  law  and  will  be

reviewed de novo.18  Under this standard of review, we will adopt

the  rule  of law that is most persuasive in light of  precedent,

reason and policy.19

IV.  DISCUSSION

     A.   The  Superior Court Did Not Err by Not Considering  the
          Likelihood that Granting Custody to Melanie Lewis Would
          Cause Severe Harm to Teresa and Kelly by Breaking Their
          Bonds with Their Foster Mother.
          
          The  state argues that the superior court erred by  not

considering the potential harm that breaking the bond between the

children  and their foster mother would cause Teresa  and  Kelly.

The state bases this argument on ICWA  1912(f),20 which they claim

must  be  read in conjunction with the Adoption and Safe Families

Act  (ASFA),21  to  impose a requirement that  Lewis  remedy  her

          conduct in a timely manner.  They claim that this timeliness

requirement  mandates that courts consider the bonds between  the

children  and  the foster mother in determining whether  granting

custody  to the biological parents is likely to result in serious

emotional  or  physical  damage to  the  children.   Because  the

superior  court considered the potential harm that  the  children

would  suffer  from the severing of their bond with their  foster

mother,  we  decline  to address whether the ICWA  requires  that

these bonds be considered.

          The  superior court considered the childrens attachment

to  the  foster mother in determining that termination of  Lewiss

parental  rights  would be in the childrens best interests  under

the  preponderance  of the evidence burden of proof  required  by

Alaska  Child  in Need of Aid Rule 18(c)(2)(C).22   The  superior

court   made   an  oral  finding,  in  support   of   the   above

determination,  that even ignoring the bonding  issue  the  court

would find by a preponderance of the evidence that the return  of

the  children to [Lewis] would be more likely than not to  result

in  serious  emotional harm to them.  While the state is  correct

that this is the only explicit mention of the bonding issue, this

reference  demonstrates that the superior  court  considered  the

issue.   The superior court also relied on the testimony  of  Dr.

Clarson,  who testified extensively on the bonding issue.23   The

superior  court also impliedly took the relationship between  the

children  and  the foster mother into consideration  in  deciding

that placement with the foster mother is appropriate and that the

children  are  doing well there.  We hold that the  trial  courts

findings, in conjunction with its reference to the bonding issue,

constitute  sufficient  consideration  of  the  likelihood   that

granting  Lewis custody would cause emotional harm to Teresa  and

Kelly.

     B.    The  Superior  Court Did Not Err in Holding  that  the
Evidence Did Not         Prove Beyond a Reasonable Doubt that the
Children  Would  Likely          Be Seriously  Harmed  by  Lewiss
Continued Custody over Them.

          The  state argues that returning the children to Lewiss

          custody will likely be harmful beyond a reasonable doubt because

Lewis  has  failed  to  remedy some of her damaging  conduct,  is

incapable  of  remedying other damaging  conduct,  and  that  the

severing  of  the childrens bond with the foster mother  will  be

emotionally  damaging.  Put another way, the state contends  that

it  has  met  its burden to show beyond a reasonable  doubt  that

failure  to  terminate parental rights is  likely  to  result  in

serious emotional or physical harm to the children.24  While  the

superior  courts findings of fact are sufficient to  satisfy  the

lesser  burdens  of proof necessary to terminate parental  rights

under  CINA Rule 18 in non-Indian termination cases, the superior

court was not clearly erroneous in finding that the higher burden

of  proof  mandated by the ICWA was not met by  the  state.   The

trial court did not clearly err in finding that the evidence  did

not  prove beyond a reasonable doubt that Lewiss custody  of  her

children  would  likely result in serious emotional  or  physical

harm to the children.

          Much  of  the  states argument focuses on past  conduct

that  has been sufficiently remedied so that there is at least  a

reasonable doubt that the conduct will likely cause serious  harm

to  the  children in the future.  It appears that Lewis might  be

among  those  parents who are capable of changing and  overcoming

the  problems that made them unfit parents.25  Significantly, the

superior  court  found that Lewis has sufficiently  remedied  the

alcohol  abuse that greatly endangered her children.  Though  she

continued  to  abuse alcohol for eight months  after  Teresa  and

Kelly  were taken from her custody, she has been sober  for  over

three years.  Likewise, Lewis has done a great deal to remedy the

domestic  violence  that  once threatened  Teresa  and  Kelly  by

separating  from  Arnold  Hanson.  Lewis  also  appears  to  have

responded  correctly on two occasions when her eighteen  year-old

son  Gary was drunkenly threatening her and Ron Lewis.   On  both

occasions  the police were promptly called and Lewis  obtained  a

restraining  order against Gary.  Finally, since Lewiss  marriage

          to Ron Lewis, she has remedied many of the unhealthy conditions

that posed a danger to Teresa and Kelly.  Whereas there would  be

old  food  left on the floor or beer cans everywhere  when  Lewis

lived  with Hanson, the home she shares with Ron was found to  be

clean by a state social worker who made a surprise inspection.

          The  state  argues that Lewis is incapable of remedying

some  of the conduct that poses a threat of harm to her children.

Most of these arguments focus on Lewiss continued mental illness,

inability  to  cope  with  stress,  limited  intelligence,   poor

decisionmaking  ability,  and general  lack  of  basic  parenting

skills,  which the state claims cannot be remedied.   This  court

has previously stated that while mental illness alone cannot form

the  basis  of  a  termination order, when the record  links  the

[parents]  continuing mental illness with his past  instances  of

extreme  neglect there may be a basis for finding  that  improper

parental conduct [is] likely to continue. 26  It appears to be  a

close  question  whether  aspects  of  Lewiss  continuing  mental

illness  will cause improper conduct in the future, and therefore

prevent her from being able to care safely for her children.

          In  the 1999 termination proceedings the superior court

found that Lewiss mental illnesses, poor judgment, poor tolerance

for  frustration, and inability to cope with the  stress  in  her

life  posed a risk of physical and mental injury to her children.

In the current termination proceedings, the superior court relied

on  its  factual  findings from the 1999 trial.  The  court  also

relied  on  new  testimony  from Drs. Mander  and  Clarson.   The

testimony of both doctors, though partially unfavorable to Lewis,

left  room for doubt as to whether she and her new husband  would

be  able to safely care for the children.  When this testimony is

considered  along  with the facts that Lewiss mental  health  has

improved to the point where she is not being actively treated  by

JAMI  and that her conservatorship has been terminated,  we  must

conclude  that it was not clear error for the superior  court  to

find that the state had not proven that the children would likely

          be physically harmed if they were returned to Lewiss custody.

          Dr.  Mander found that Lewis suffered from mild  mental

retardation, that this condition impaired her judgment, and  that

she  possibly suffered from a major, undiagnosed mental  illness.

He  also  gave  a  bleak  evaluation of Lewiss  ability  to  make

extemporaneous decisions.  His final conclusion was  that  it  is

extremely  unlikely that [Lewis] could function independently  as

an  appropriate  parent . . . and she is particularly  unable  to

care   for  special  needs  children.   Nonetheless,  Dr.  Mander

testified  that  people  with  Lewiss  diagnosed  disorders   are

treatable  and  that  neither the disorder nor  the  mild  mental

retardation  necessarily rule anyone out as an effective  parent.

He  also  found that she has greatly benefitted from  terminating

her   abusive  relationship  with  Arnold  Hanson,   entering   a

supportive  relationship  with  Ron  Lewis,  and  her   continued

sobriety.  On cross-examination Dr. Mander said that it was  only

more likely than not that some harm would come to the children if

they  were  in  [Lewiss] care, under her . . . sole  supervision.

Dr.  Mander  also qualified his opinion that the  children  would

likely  be  harmed if Lewis were caring for them  by  herself  by

noting   the  positive  influence  of  Ron,   and  he  ultimately

recommended expanded, structured visitation between the  children

and Lewis.

          Dr.  Clarsons  testimony  also  raised  concerns  about

Lewiss ability to parent Teresa and Kelly.  She found that  Lewis

had  difficulty responding to both children effectively  and  did

not  set  proper  limits  for  the children.   Dr.  Clarson  also

testified that Lewis lacks many basic parenting skills and  would

need   personal  counseling  dealing  with  regulating   feeling,

regulating  emotions  and  expressing  feelings,  social  skills,

training,  [and]  decision making as a foundation  in  order  for

there  to  be  increased contact between her  and  her  children.

Nevertheless,   Dr.  Clarson  ultimately  recommended   increased

visitation  between  the  children and their  biological  family,

saying  not  only  do I not believe it would be  harmful  to  the

children  to  have contact with their mother and grandparents,  I

believe that it would be helpful.  In light of this testimony, we

cannot say that the superior court clearly erred in finding  that

ICWAs reasonable doubt standard was not met.

          The  state  argues  that  the significant  chance  that

severing  the bonds between the children and their foster  mother

will  cause emotional harm, when combined with the above concerns

over  Lewiss parenting ability, is sufficient to meet  the  ICWAs

high  burden of proof.  There was certainly ample testimony  from

Dr.  Clarson supporting a conclusion that the children  would  be

harmed  by ending that relationship.  Dr. Clarson concluded  that

after a relationship of almost four years, as of her testimony on

October 29, 2001, the children saw their foster parents as  their

psychological  parents.   She  also expressed  concern  that  the

children  would experience serious emotional damage if they  were

removed  from  their  placement with their  foster  mother.   Dr.

Clarson  warned  that  the ending of this relationship  would  be

extremely  distressing to the children and  would  lead  to  them

acting  out and then becoming depressed, detached, and unable  to

succeed at school or maintain peer relationships for a very  long

period  of time.  Nonetheless, Dr. Clarson ultimately recommended

more contact with Lewis and Lewiss parents and family.  Likewise,

Dr. Mander recommended increased visitation and some unsupervised

visitation  between  the  children and their  biological  family.

Additionally, Dr. Mander testified that professionals can  be  of

assistance  in  overcoming bonding issues.  While this  testimony

did  not constitute an endorsement of granting custody to  Lewis,

it  also  was  not a recommendation that her parental  rights  be

terminated,  something that this court has found  instructive  in

similar  cases terminating parental rights under ICWA  1912(f).27

The testimony supports the superior courts holding that the state

did  not  prove  beyond  a reasonable doubt  that  returning  the

children  to Lewis would be likely to cause them severe emotional

          harm.

          The  superior  court  was correct  to  draw  a  careful

distinction between the preponderance of the evidence  and  clear

and  convincing  standards of proof used in non-ICWA  proceedings

and  the beyond a reasonable doubt standard of proof demanded  by

ICWA   1912(f).   We  hold that, because of the  improvements  in

Lewiss  ability to care for her children and the doubt raised  by

the  expert  testimony of Drs. Mander and Clarson,  the  superior

court  was not clearly erroneous in finding that the state failed

to prove beyond a reasonable doubt that granting Lewis custody of

the children would likely result in serious emotional or physical

damage to the [children].28

V.   CONCLUSION

          Because the superior court did not err in finding  that
the  state  failed to meet the burden of proof demanded  by  ICWA
1912(f),  we AFFIRM the decision not to terminate Lewiss parental
rights.
_______________________________
     1     Pseudonyms  are used for all family  members  in  this
opinion.

     2     Melanie Lewis married Ron Lewis between the 1999 child
custody  determination  and this case.  She  is  referred  to  as
Melanie  Hanson (M.H.) in earlier court documents and  M.L.L.  in
current court documents.

     3     Arnold Hansons parental rights were terminated  in  an
earlier case, which we affirmed.  A.H. v. State, Dept of Health &
Soc. Servs., 10 P.3d 1156 (Alaska 2000).

     4    Id. at 1158.

     5    Id. at 1159.

     6    Id.

     7    Id.

     8    Id.

     9    AS 47.10.011(11) provides:

          Subject to AS 47.10.019, the court may find a
          child  to  be a child in need of  aid  if  it
          finds by a preponderance of the evidence that
          .  . . the parent, guardian, or custodian has
          a    mental    illness,   serious   emotional
          disturbance, or mental deficiency of a nature
          and   duration  that  places  the  child   at
          substantial risk of physical harm  or  mental
          injury[.]
          
     10    AS 47.10.011(10) provides in relevant part:

          Subject to AS 47.10.019, the 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 [conditions
          under   which]   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[.]
          
     11    AS 47.10.011(8)(B)(iii) provides:

          Subject to AS 47.10.019, the 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 . . . conduct
          by  or  conditions  created  by  the  parent,
          guardian,  or custodian [which] have  .  .  .
          placed  the  child  at  substantial  risk  of
          mental  injury as a result of . . .  repeated
          exposure to conduct by a household member, as
          defined  in  AS  18.66.990,  against  another
          household  member that is a  crime  under  AS
          11.41.230(a)(3) or 11.41.250-11.41.270 or  an
          offense  under a law or ordinance of  another
          jurisdiction  having elements  similar  to  a
          crime  under AS 11.41.230(a)(3) or 11.41.250-
          11.41.270[.]
          
     12    AS 47.10.011(9) provides:

          Subject to AS 47.10.019, the court may find a
          child  to  be a child in need of  aid  if  it
          finds by a preponderance of the evidence that
          . . . conduct by or conditions created by the
          parent, guardian, or custodian have subjected
          the  child  or  another  child  in  the  same
          household to neglect[.]
          
     13    A.H. v. State, 10 P.3d 1156 (Alaska 2000).

     14    25 U.S.C.A.  1912(f) (2001).

     15     Though appellants challenged the applicability of the
ICWA  at  trial and in their points on appeal, they  subsequently
waived that challenge in their briefs.

     16    A.H., 10 P.3d at 1160.

     17    E.A. v. State, 623 P.2d 1210, 1212 (Alaska 1981).

     18     L.G. v. State, Dept of Health & Soc. Servs., 14  P.3d
946, 950 (Alaska 2000).

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

     20    25 U.S.C.A.  1912(f) (2001) states:

          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.
          
     21     The  state argues that the Adoption and Safe Families
Act  of  1997, Pub. L. 105-89,  101, 111 Stat. 2115, 2116  (1998)
(codified  as  amended at 42 U.S.C.A.  671(a)(15) (Supp.  2002)),
imposes  a requirement that Lewis remedy her conduct in a  timely
manner  and that the reasonableness of the time taken  to  remedy
her  conduct is determined by whether returning the child to  the
parent at this point would place the child at substantial risk of
physical  or mental injury.   The state contends that because  of
Lewiss  failure  to  remedy her conduct in a  timely  manner  the
children developed bonds with their foster mother, and that  they
will  suffer  emotional  harm  if  these  bonds  are  severed  by
returning the children to Lewis.

     22    CINA Rule 18 states in relevant part:

          (c)  Before the court may terminate  parental
          rights, the Department must prove:
               (1)  by  clear  and convincing  evidence
          that
                    (A) the child has been subjected to
          conduct   or  conditions  described   in   AS
          47.10.011 and
                         (i)   the   parent   has   not
          remedied  the  conduct or conditions  in  the
          home that place the child at substantial risk
          of harm; or
                         (ii)  the  parent has  failed,
          within  a  reasonable  time,  to  remedy  the
          conduct or conditions in the home that  place
          the   child  in  substantial  risk  so   that
          returning the child to the parent would place
          the child at substantial risk of physical  or
          mental injury; or
                         . . . .
               (2)  by  a preponderance of the evidence
          that
                    . . . .
                    (C)  termination of parental rights
          is in the best interests of the child; and
               (3)  in the case of an Indian child,  by
          evidence beyond a reasonable doubt, including
          the  testimony of qualified expert witnesses,
          that  continued custody of the child  by  the
          parent  or  Indian  custodian  is  likely  to
          result   in  serious  emotional  or  physical
          damage to the child.
          
     23     Dr.  Clarsons  oral testimony dealt extensively  with
attachment  issues.   Her report also dealt with  the  attachment
between  the  children and their foster mother,  concluding  that
removal  from  the  foster  family  would  likely  cause   severe
emotional  distress.   The  report  also  included  a  number  of
relatively favorable evaluations of the interaction between Lewis
and her children.

     24     C.J. v. State, Dept of Health & Soc. Servs., 18  P.3d
1214, 1218 (Alaska 2001).

     25    Rita T. v. State, 623 P.2d 344, 347 (Alaska 1981).

     26     A.H. v. State, Dept of Health & Soc. Servs., 10  P.3d
1156, 1162 (Alaska 2000) (alteration in original) (quoting J.P.W.
v. State, 921 P.2d 604, 608 (Alaska 1996)).

     27     See J.A. v. State, Dept of Family & Youth Servs.,  50
P.3d  395, 402 (Alaska 2002) (Both experts recommended that J.A.s
rights  to his three children be terminated and given the experts
high  degree of familiarity with the case materials this was more
than sufficient to support the trial courts conclusion under ICWA
that  J.A.s children would likely be seriously harmed if returned
to him.).

     28    25 U.S.C.A.  1912(f) (2001).