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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gilbert M. v. State (07/21/2006) sp-6029

Gilbert M. v. State (07/21/2006) sp-6029, 139 P3d 581

     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,


) Supreme Court No. S- 11364
Appellant, )
) Superior Court No.
v. ) 3AN-00-545 CP
Appellee. ) No. 6029 - July 21, 2006
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon Gleason, Judge.

          Appearances:   Nancy  Shaw,  Anchorage,   for
          Appellant.   Michael  G. Hotchkin,  Assistant
          Attorney  General, Anchorage,  and  David  W.
          M rquez,   Attorney  General,   Juneau,   for
          Appellee  State  of Alaska.  David  S.  Case,
          Landye Bennett Blumstein, LLP, Anchorage, for
          Appellee  Chitina Traditional Indian  Village
          Council.   Jill  C.  Wittenbrader,  Assistant
          Public  Advocate, and Joshua P. Fink,  Public
          Advocate,    Office   of   Public   Advocacy,
          Anchorage, Guardian Ad Litem.

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

          CARPENETI, Justice.

          Gilbert  M. appeals the termination of Jan M.s parental
rights to her daughter  Gilberts granddaughter  Belinda T.1   The
state  took  Belinda  from Gilberts home  in  2000  when  he  was
arrested  on  felony gun and drug charges.  Jan has not  appealed
          the termination of her parental rights and Belinda has since been
adopted.  Gilbert has been convicted of numerous felonies and  is
incarcerated  for  the foreseeable future.  Gilbert  appeals  the
termination  of  Jans rights, asserting that the  superior  court
applied  the wrong evidentiary standard in assessing  the  states
active  efforts  and that the court erred in  failing  to  obtain
testimony  from  an  expert  in  Native  culture.   Gilbert  also
challenges the superior courts finding that harm would result  if
Belinda  were  to  be  placed with him and  the  superior  courts
refusal  to  order Belindas adoptive parents to  provide  Gilbert
visitation.   Because Gilbert does not have  standing  to  appeal
Jans  rights,  and because the claims which he  has  standing  to
appeal  are rendered moot by his lengthy incarceration, we affirm
the judgment of the superior court.
     A.   Facts
          Belinda T. was born in June 1996 to Jan M. and Henry T.
Henrys  whereabouts are unknown and state efforts to  locate  him
have been unsuccessful.  Jan and Belinda are affiliated with  the
Chitina Traditional Indian Village and Belinda is an Indian child
within the meaning of the Indian Child Welfare Act (ICWA).2
          The  state  received three reports of harm  to  Belinda
between  1998 and 2000.  These reports indicated Jan was drinking
heavily  and  using  both  crack cocaine  and  marijuana.   These
substance  abuse  problems interfered with  Jans  ability  to  be
Belindas  caretaker.  Until 2000 Jan often left  Belinda  in  the
care of Gilbert M., Jans father.
          On  September 23, 2000 the Anchorage Police  Department
raided Gilberts home and arrested him.  According to the petition
to terminate parental rights, Police observed a loaded pistol and
bullets  in open view at the residence, and a heavy gun case  was
removed  from  under [Belinda]s bed.  Police also found  multiple
bags  of marijuana, as well as money believed to be from the sale
of  drugs.   Following  a jury trial, Gilbert  was  convicted  of
fourteen felonies and was sentenced to a presumptive twenty-five-
year prison term; Gilbert faces another six years of imprisonment
in  a  different case.  Gilbert is currently sixty-six years old;
he  will  likely  be incarcerated for a lengthy period  and  will
almost  certainly be in prison when Belinda reaches  the  age  of
          The  state took Belinda into emergency custody  at  the
time  of  Gilberts arrest.  Jan apparently was living in Nome  at
the  time.   In September 2000 the Division of Family  and  Youth
Services  (DFYS or the division) filed an emergency petition  for
adjudication  that Belinda was in need of aid and  for  emergency
placement.   Superior Court Judge Peter A. Michalski granted  the
petition in October 2000 and temporarily placed Belinda in  state
custody.   Gilbert  participated  in  the  custody  hearing;  the
superior  court  master stated that [Gilbert  M.]  is  an  Indian
custodian  and  thereby entitled to party status and  the  courts
order  referred  to  Gilbert  as the maternal  grandfather/Indian
          On  February  14,  2001  the  parties  to  the  custody
proceeding  entered  a  stipulation before Superior  Court  Judge
          Sharon Gleason to the effect that Belinda was a child in need of
aid under AS 47.10.011(6)5 and (10)6 and that return home was not
appropriate at the time, pending Jans progress on her case  plan.
The  stipulation included the statement, as part of the basis for
Belinda being a child in need of aid, that [t]he Indian custodian
is   currently  facing  criminal  prosecution  and  is   not   an
appropriate caretaker for the child at this time.  Gilbert signed
the stipulation, as did Jan and the guardian ad litem.
          In  the meantime, Jan began work on her case plan.  She
signed the plan on October 10, 2000.  It provided that Jan  would
pursue alcoholism treatment, would follow mental health treatment
recommendations, and would follow social workers  recommendations
on  providing for Belindas safety.  Jan entered a detox  facility
on  January  19,  2001  but was discharged  on  February  27  for
assaulting another patient.  She entered another facility on  May
15, 2001 but left two weeks later against treatment advice.
          The  guardian  ad  litem  (GAL)  for  Belinda  filed  a
disposition report on May 11, 2001.  The report recommended  that
Belinda continue in foster care while Jan worked on her case plan
and  that  once the mother is settled into residential treatment,
the  parties may consider placement of [Belinda] with the mother.
As to Gilbert, the GAL reported
          [Gilbert  M.]  is  an  Indian  Custodian  and
          expressed a desire to work a case plan. . . .
          The GAL assumes that Mr. [M.] is focusing  on
          resolving his criminal charges at this point.
          .  .  .  In  the  event that [Jan]  does  not
          complete  treatment or relapses, it would  be
          in [Belindas] best interests for [Gilbert M.]
          to  work a case plan and be considered  as  a
          future placement for [Belinda].
          Jan   successfully  completed  alcohol  treatment  from
October 16, 2001 to November 21, 2001.  As a result, DFYS decided
in  January 2002 to proceed toward reunification, placing Belinda
in  a  foster  home  in Anchorage.  In May 2002  Jan  entered  an
outpatient   aftercare  program.   She  was  discharged   against
treatment  advice  on  July 25, 2002.   Jans  attendance  at  the
program was sporadic.  At about the same time, in June 2002,  Jan
apparently relapsed into alcoholism and fell out of contact  with
          As  a result of Jans non-compliance with the case plan,
the  superior  court  in July 2002 adopted a permanency  plan  of
adoption.   The  courts  order  stated  that  Jan  had  not  made
substantial  progress to remedy her conduct or the conditions  in
the  home  which caused the child to be a child in need  of  aid.
Referring   to  Gilbert,  it  added,  The  Indian  custodian   is
incarcerated and is not likely to be released in the  foreseeable
          DFYS social worker Kimberly Uhrich developed a new case
plan  in  October 2002, which Jan signed.  This plan had  similar
elements  to the 2000 plan but included adoption as a  concurrent
goal.   Jan  had to be hospitalized for an inhalant  overdose  in
October  2002, after which Uhrich arranged for Jan to be admitted
to  an  inpatient treatment program in Fairbanks.  Jan left  that
          program after a week.  Belinda was adopted by a tribally-approved
family in October 2005.
     B.   Proceedings
          The  division filed a termination petition against both
parents on August 28, 2002.  Judge Gleason heard evidence against
Henry T., Belindas father, on Feburary 13, 2003, and ordered  his
parental rights terminated  effective February 13  in an order of
November  10, 2003.  At trial, social worker Kim Uhrich testified
that  efforts  to locate Henry had been utterly unsuccessful  and
that further efforts had no likelihood of finding him.
          At  the trial setting conference on March 12, 2003  the
court  noted  that  Gilberts rights as an Indian  custodian  were
unclear  and ordered briefing on the matter.  No briefing appears
in  the  record.   Though  he continued  to  participate  in  the
proceedings,  Gilbert  was  never  referred  to  as  the   Indian
custodian again.  His attorney noted at trial that he was  unsure
whether  Gilbert  could make any stipulations  regarding  Belinda
since  the  petition . . . is against the daughter.   The  states
attorney stated his belief that the court could enter an order on
Belindas status without the grandfather.
          The  superior court held a trial on termination of Jans
parental  rights  on  May 20 and 27, 2003.  Gilbert  participated
telephonically in the proceedings (as he was incarcerated at  the
time)  and was represented by court-appointed counsel.  The court
issued  an  order on the termination petition on July  18,  2003,
holding  that  (1) DFYS had demonstrated by clear and  convincing
evidence  that  Belinda  was a child in  need  of  aid  under  AS
47.10.011(10)  and that Jan had failed to remedy  the  conditions
that  caused Belinda to be in need of aid;7 (2) that the division
had proved by a preponderance of the evidence that active efforts
to  prevent  the  breakup of the family had been made,  at  least
through  May  2003;8 and (3) that termination  of  Jans  parental
rights was in Belindas best interests.9
          The  court  ruled, however, that the division  had  not
established  beyond  a reasonable doubt that placing  Belinda  in
Jans  custody  was  likely  to  result  in  serious  physical  or
emotional  damage.   The  court was  concerned  that  the  states
expert, Dr. Richard Lazur, had not interviewed Jan or Belinda and
that  he  had discounted the bond between Jan and Belinda,  given
uncontradicted testimony that [Belinda] loves Ms. [M.] and  would
very  much  like for Ms. [M.] to remain in her life.   The  court
deferred the petition for ninety days.
          The  court  heard additional evidence on  November  19,
2003 which satisfied its earlier concerns.  The court issued oral
findings on November 21, 2003 and a written order on January  28,
2004  terminating  Jans  parental rights effective  November  21,
2003.   The  courts termination order incorporated  the  findings
issued after the first termination hearing.  The order found that
the  state  has  proved beyond a reasonable  doubt  .  .  .  that
continued  custody of [Belinda] by [Jan M.] or  [Gilbert  M.]  is
likely  to  result  in serious emotional or  physical  damage  to
[Belinda].   The court also held that the state had  demonstrated
active efforts for the May 2003-November 2003 period and that  it
remains  contrary  to [Belinda]s welfare to be  returned  to  the
          custody of her mother or her Indian custodian.
          Belinda  was adopted on October 28, 2005.  The adoption
decree  found  that  the adoptive parents wish  to  maintain  the
childs continued contact with her Alaska Native Culture and  that
they have demonstrated a willingness and ability to maintain  the
childs  contact  with her grandfather.  In the  adoption  hearing
Gilbert  requested that the court order visitation  as  permitted
under  AS 25.23.103(c) of no less than one personal visit or  one
fifteen  minute  phone call per month.  The superior  court  held
that  the  adoptive  parents shall have the  sole  discretion  to
determine the frequency and circumstances of visitation that  are
reasonable and in the childs best interests.  It is not necessary
and  it  is not in the childs best interests to enter a  specific
order  defining  the terms of visitation in the adoption  decree.
(Emphasis in original.)
          Gilbert and the Chitina Village both initially appealed
the termination of Jans rights; the village had intervened in the
custody proceedings as provided by ICWA.10  Jan did not appeal the
termination.   Gilberts and Chitinas appeals were stayed  pending
tribal  approval  of  the adoptive placement; Gilberts  appointed
counsel  reported that it appears likely that [Belinda]s adoption
by  the tribally preferred parents will moot the appeal issues of
both  [Chitina] and [Gilbert].  Indeed, after Belinda was  placed
with her adoptive parents, Chitina abandoned its appeal, which we
dismissed  sua  sponte  for  want  of  prosecution.   Chitina  is
participating in this case as an appellee.
          Gilbert appeals from the termination order.  He  argues
that the United States Constitution requires that the state prove
all elements of its termination case  including whether the state
made  active  efforts to prevent the breakup of  his  family   by
clear  and convincing evidence, and thus that the superior  court
erred  when it evaluated the states efforts under a preponderance
standard.  Gilbert argues that the states efforts would not  meet
this  heightened evidentiary burden.  Second, Gilbert argues that
the  superior court erred in crediting the states expert  and  in
not requiring that the state present testimony from an expert  on
tribal  childrearing practices.  Finally, Gilbert challenges  the
superior  courts  finding that placing  Belinda  with  him  would
result in harm to Belinda.
          I.   We review factual findings of the trial court for clear
error, which exists when our review of the record leaves us  with
the definite and firm conviction that the superior court has made
a  mistake.11   Whether the state has complied  with  the  active
efforts requirement of ICWA is a mixed question of law and fact.12
We  use  our independent judgment in deciding questions  of  law,
adopting  the  rule of law that is most persuasive  in  light  of
precedent, reason, and policy.13  It is a question of law whether
the superior courts findings are consistent with child-in-need-of-
aid  rules and statutes.14  Threshold questions such as mootness,
standing,  and ripeness  as matters of judicial policy   are  all
questions  of  law.15  We  may affirm the superior court  on  any
basis  supported  by  the record, even  if  that  basis  was  not
considered by the court below or advanced by any party.16
     A.   Gilbert Does Not Have Standing To Appeal the Termination.
            Before  we consider the merits of Gilberts appeal  we
must determine whether he has standing to bring the appeal.   The
basic  requirement for standing in Alaska courts is  adversity.17
The  plaintiff  must have an interest adversely affected  by  the
conduct  complained of.18  This requirement is sometimes referred
to as the interest-injury test.19  Standing in our state courts is
not  a  constitutional doctrine; rather, it is a rule of judicial
self-restraint  based  on the principle that  courts  should  not
resolve abstract questions or issue advisory opinions.20  Neither
the   interest  nor  the  injury  asserted  need  be  great;   an
identifiable  trifle  is  enough for  standing  to  fight  out  a
question of principle.21
          1.   Gilbert does not have standing to assert Jans rights.
          1.    1.   We have not fully aired the question of  the
circumstances in which a party may raise the rights  of  a  third
person.  In Peterson v. Ek,22 a breach of contract suit, we noted
that  Peterson  lacked standing to assert the claim  of  a  third
party   who  had  loaned  supplies  to  Peterson  and  which   Ek
appropriated.23   Peterson  alleged that  Ek  misappropriated  an
anchor,  line, and chain that Petersons friend Greg  Dockery  had
loaned   to  Peterson.24   We  noted  that  [e]ven  if   Ek   did
misappropriate  these items, Peterson does not have  standing  to
assert  the claim of a third party.25  We cited to the  following
passage  from Moore v. State: Standing questions are  limited  to
whether the litigant is a proper party to request an adjudication
of  a  particular  issue  and not whether  the  issue  itself  is
justiciable. 26  We have also held that a party generally does not
have  standing  to  assert the federal constitutional  rights  of
another.27  We have, however, allowed third party standing where a
special  relationship exists between the plaintiff and the  third
party.28   Parents, for example, may assert the rights  of  their
minor  children.29  No such special relationship  exists  between
Gilbert and Jan.  Gilbert is Jans father, but she is not a  minor
and there has been no allegation that Jan is unable to assert her
rights.  She has instead chosen not to assert them.
          Gilbert  argues  that he has standing  because  he  was
allowed  to  intervene in the proceedings below and  because  the
court  below  issued  findings declaring that continuing  custody
with  Gilbert  would  cause harm to Belinda.   Aside  from  these
findings,  Gilbert  has  no  interest directly  affected  by  the
termination.   As the state argues, his claims belong  to  [Jan].
Gilbert  claims that his relationship with the child was  severed
by  the  termination order, but that is not  the  case.   Gilbert
retains some visitation rights subject to the discretion  of  the
adoptive  parents.30   The  court took the  relationship  between
Gilbert  and  Belinda  into account, expressing  concern  that  a
previous foster family unilaterally cut off . . . contact between
Mr. [M.] and his granddaughter.
          Furthermore, Gilberts participation in the  proceedings
below  was  based  chiefly on his status as Belindas  grandfather
rather  than  as her Indian custodian.  His rights,  if  any,  as
Indian custodian were not at issue in the proceeding.  The  court
          did not feel that Gilbert had enough at stake to be entitled to
participate  personally,  and allowed  him  to  participate  only
telephonically, stating Im not inclined to sign a transport order
in  response to the suggestion that he attend in person.  At  the
March  12,  2003 trial setting conference, the court  noted  that
Gilberts  rights as an Indian custodian were unclear and  ordered
briefing  on the matter.  Gilbert was never referred  to  as  the
Indian  custodian again and no briefing appears  in  the  record.
His  attorney  noted at trial that he was unsure whether  Gilbert
could  make any stipulations regarding Belinda since the petition
.  . . is against the daughter.  Gilberts rights were not changed
by  the  termination proceeding and he has no basis to  challenge
the termination of Jans rights.
          2.   ICWA does not grant Gilbert standing.
          Gilbert  also  argues  that ICWA grants  him  standing.
Section  1911(c) of ICWA provides: In any State court  proceeding
for  the  foster  care placement of, or termination  of  parental
rights to, an Indian child, the Indian custodian of the child and
the  Indian childs tribe shall have a right to intervene  at  any
point   in  the  proceeding.   If  Gilbert  is  Belindas   Indian
custodian,  then  it seems he would have a right  to  appeal  the
termination.    As   we   explain  below,  however,   since   his
incarceration  Gilbert no longer has any basis  to  claim  to  be
Belindas  Indian custodian; also, the superior court never  found
him  to  be the Indian custodian even before he was incarcerated.
Gilbert thus is not granted standing to appeal by ICWA.31
          Two additional factors provide support for our decision
to  decline  to reach the substantive issues of Gilberts  appeal.
First  is the best interests of the child.  Belinda is nine years
old  and has just been adopted by a tribally-approved family  who
wish  to  maintain the childs continued contact with  her  Alaska
Native  Culture  and  who  have demonstrated  a  willingness  and
ability to maintain the childs contact with her grandfather.   To
upset this adoption on the basis of Gilberts complaints would not
be  in  Belindas best interests because it would  return  her  to
legal  limbo  and  could shatter the stability  she  has  finally
          Moreover, Chitina acknowledges that reaching the merits
of  Gilberts challenges to the standard of proof and the adequacy
of  expert  testimony  would result in an advisory  opinion.   It
characterizes  the  appeal as raising  two  important  issues  of
significance  for  future  cases  and  argues  that  the   unique
circumstances  of  this case mandate that our decision  would  be
applied prospectively only.  A decision that would have no effect
on  the parties before the court is purely advisory and therefore
the appeal is nonjusticiable.
          Since  Gilbert  does not have standing  to  appeal  the
termination   whether by virtue of his relationship  to  Belinda,
his   purported  status  as  an  Indian  custodian,  or  by   his
relationship to Jan  we decline to consider his challenges to the
termination proceeding.
     B.   Gilberts  Remaining  Claims Are  Moot  Because  of  His
          Although  Gilbert does not have standing to appeal  the
          termination, he does have standing to appeal rulings that
directly  affect  his  rights.   The  only  issues  that  concern
Gilberts rights are the courts findings that placement of Belinda
with  Gilbert  would  result in harm to Belinda  and  the  courts
refusal,  in the adoption proceedings, to order Belindas adoptive
parents  to provide for visitation with Gilbert.  Both  questions
are  intertwined  with  Gilberts  status,  or  lack  thereof,  as
Belindas Indian custodian; his appeal thus implicitly asks for  a
restoration or imposition of that status.  The guardian ad  litem
argues   that   these   questions  are  moot   because   Gilberts
incarceration means that he cannot resume caring for  the  child.
Chitina  appears  to agree that the appeal is nonjusticiable  but
asks us to rule on the substantive issues Gilbert has raised.

          We  have  stated, Under ordinary circumstances we  will
refrain  from  deciding questions where events have rendered  the
legal issue moot.32  A matter is moot if it has lost its character
as  a  present, live controversy,33 or if the party bringing  the
action  would  not  be  entitled  to  any  relief  even  if  [it]
prevail[s].34  In Akpik v. State, Office of Management and Budget,
for example, we held that challenges to the states approval of an
oil drilling project were moot once the driller had abandoned the
project and the period for approving the project had expired.35
          Federal  law  defines Indian custodian  as  any  Indian
person who has legal custody of an Indian child under tribal  law
or  custom or under State law or to whom temporary physical care,
custody  and control has been transferred by the parent  of  such
child.36  Gilbert was never granted legal custody of  Belinda  by
either  the  tribe or the state.  The only basis for  Gilbert  to
claim  Indian custodian status was his temporary physical custody
of  Belinda before his arrest in 2000.  The court below  assumed,
without deciding, that Gilbert had been Belindas Indian custodian
because  Gilbert cared for Belinda before his arrest.   Based  on
this  assumption, the court included him in the  termination  and
custody  proceedings.  The court never decided,  though,  whether
Gilbert  was  indeed  Belindas Indian custodian.   Regardless  of
whether Gilbert previously was Belindas Indian custodian  on  the
basis of temporary physical care, custody, and control, he cannot
now  achieve  that  status  since he  will  almost  certainly  be
incarcerated for the entirety of Belindas minority.37   Indeed, he
will  probably  spend the rest of his life in  prison.  Thus  any
claim premised on restoration of Gilberts Indian custodian status
is moot.38
     C.   Legislative  Action Has Changed the Standard  of  Proof
          Applicable to Active Efforts Findings.
          As  we  discussed above, Gilbert does not have standing
to challenge the standard of proof the superior court used in the
termination  proceeding to determine whether the state  had  made
active  efforts  to prevent the breakup of his  family.   Gilbert
argues  that  due process requires clear and convincing  evidence
rather than a preponderance of the evidence  to support a finding
          that active efforts have been made.39  The state, Chitina, and
Belindas guardian ad litem all agree that clear and convincing is
the  proper  standard.   Even though we  decline  to  reach  this
challenge  because  Gilbert lacks standing,  we  note  that  this
challenge has been made moot by legislative action.
          On  May  3,  2006, while this appeal was  pending,  the
governor  signed legislation changing the applicable standard  of
proof  for  the active efforts finding to clear and convincing.40
The  legislation was made effective immediately  and  applied  to
pending cases, such that the clear and convincing standard  would
apply  to Gilberts challenge.41  Even though we do not reach  the
merits,  we  note  that  Gilberts appeal  may  have  alerted  the
legislature  and  executive of the need to address  an  important
issue  in Alaska law.  The conduct of Gilberts appointed  counsel
in  this  case  comports with the highest  traditions  of  public
          Gilbert   does   not  have  standing  to   appeal   the
termination  of   Jans  parental rights.  The  remainder  of  his
appeal  is  moot  because of his incarceration.   Accordingly  we
AFFIRM the judgment of the superior court.
     1     We  have  used pseudonyms throughout this  opinion  to
protect the privacy of family members.

     2     25  U.S.C.  1903(4) (2000) (defining Indian child  for
purposes of ICWA as any unmarried person who is under the age  of
eighteen  and is either a) a member of an Indian tribe or  b)  is
eligible  for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.).

     3     Gilberts conviction and sentence are not part  of  the
trial  court record in this case but we may take judicial  notice
of  them under Alaska Evidence Rules 201 and 203.  Moreover,  the
criminal judgment was included in the appellees motion to dismiss
Gilberts appeal as moot.

     4     25 U.S.C.  1903(6) (2000) defines Indian custodian  as
any  Indian person who has legal custody of an Indian child under
tribal  law  or  custom or under State law or to  whom  temporary
physical care, custody, and control has been transferred  by  the
parent of such child.

     5    AS 47.10.011(6) provides that a child is in need of aid
if the court finds by a preponderance of the evidence that:

          the  child has suffered substantial  physical
          harm, or there is a substantial risk that the
          child  will suffer substantial physical harm,
          as  a  result  of  conduct by  or  conditions
          created  by  the childs parent, guardian,  or
          custodian  or by the failure of  the  parent,
          guardian, or custodian to supervise the child
     6     AS  47.10.011(10) provides, in relevant part,  that  a
child is in need of aid if:

          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.
     7    See AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).

     8    See former CINA Rule 18(c)(2).

     9    See AS 47.10.088(c).

     10     See  25  U.S.C.  1911(c) (2000) (In any  State  court
proceeding  for  the foster care placement of, or termination  of
parental  rights  to, an Indian child, . . .  the  Indian  childs
tribe  shall  have  a  right to intervene at  any  point  in  the

     11    D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 207-08 (Alaska 2000).

     12     N.A. v. State, Div. of Family & Youth Servs., 19 P.3d
597,  600-01 (Alaska 2001); A.A. v. State, Div. of Family & Youth
Servs., 982 P.2d 256, 259 (Alaska 1999).

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

     14     Jeff  A.C., Jr. v. State, 117 P.3d 697,  702  (Alaska

     15    Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534 (Alaska 2005); Ulmer v. Alaska Rest. & Beverage Assn, 33 P.3d
773, 776 (Alaska 2001).

     16    Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska 2001).

     17    Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska

     18    Id.

     19    Id.

     20    Id.

     21      Wagstaff v. Superior Court, Family Court  Div.,  535
P.2d  1220,  1225 n.7 (Alaska 1975) (quoting Kenneth Culp  Davis,
Standing:  Taxpayers  and Others, 35 U. Chi.  L.  Rev.  601,  613

     22    93 P.3d 458 (Alaska 2004).

     23    Id. at 464 n.10.

     24    Id.

     25    Id.

     26     Moore v. State, 553 P.2d 8, 23-24 n.25 (Alaska  1976)
(quoting  Flast v. Cohen, 392 U.S. 83, 100-01 (1968)).  See  also
Scammon  Bay  Assn, Inc. v. Ulak, 126 P.3d 138,  142-43   (Alaska
2005)  (citing  Graham  v. City of Anchorage,  364  P.2d  57,  59
(Alaska  1961))  (failed intervenor has standing only  to  appeal
denial of intervention); Austin v. Fulton Ins. Co., 498 P.2d 702,
705 (Alaska 1972) (insurer could not appeal from summary judgment
granted to insurance agent against insured).

     27    Falcon v. Alaska Pub. Officers Commn, 570 P.2d 469, 475
n.20  (Alaska  1977).   A  party may,  however,  assert  anothers
constitutional  rights if the other is unable.   Cf.  Barrows  v.
Jackson, 346 U.S. 249, 257 (1953).

     28     State  ex  rel. Depts of Transp. & Labor  v.  Enserch
Alaska Const., Inc., 787 P.2d 624, 630 n.9 (Alaska 1989).

     29     Bonjour v. Bonjour, 592 P.2d 1233, 1241 n.15  (Alaska

     30     Cf.  Troxel v. Granville, 530 U.S. 57,  66-67  (2000)
(imposing  grandparent  visitation  against  wishes  of   parents
violates parents liberty interest in care and upbringing of their

     31     Section 1914 of ICWA provides that any . .  .  Indian
custodian from whose custody [an Indian] child was removed . .  .
may  petition  any court of competent jurisdiction to  invalidate
such  action  upon  a  showing  that  such  action  violated  any
provision  of  sections 1911, 1912, and 1913 of  this  title.  25
U.S.C.   1914  (2000).  Gilbert argues that  his  appeal  may  be
considered  a petition under section 1914.  As we explain  below,
however,  Gilberts  Indian custodian status,  if  any,  has  been
mooted  by  his  incarceration, as has any basis for  a  petition
under  section  1914.   We thus decline to  consider  whether  an
appeal  of  an  ICWA  termination  proceeding  may  properly   be
considered a section 1914 petition.

     32    Kodiak Seafood Processors Assn v. State, 900 P.2d 1191,
1195 (Alaska 1995).

     33    Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
535 (Alaska 2005) (quoting Kodiak Seafood Processors, 900 P.2d at

     34    OCallaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)
(quoting Maynard v. State Farm Mut. Auto Ins. Co., 902 P.2d 1328,
1329  n.2 (Alaska 1995)) (challenge to ballot substitutions  moot
because terms of persons elected had expired).

     35    Akpik, 115 P.3d at 535.

     36    25 U.S.C.  1903(6) (2000).

     37     Gilbert was convicted of fourteen felonies, eight  of
which  are  class A felonies.  AS 11.71.020(c).  He was sentenced
to a total of twenty-five years presumptive imprisonment on three
of  the A felonies.  Under AS 33.16.100(d) Gilbert must serve  at
least one-third of the twenty-five years, or eight years and four
months,   before  becoming  eligible  for  discretionary  parole.
Additionally,  Gilbert faces a sentence of six years  in  another
proceeding.   He  has  been convicted there of  several  class  B
felonies  for which a minimum of one-fourth of the sentence  must
be  served  before  eligibility  for  discretionary  parole.   AS
33.16.100(c).  Gilbert is thus assured of incarceration for  nine
years  and ten months from July 8, 2004.  Belinda turns  eighteen
ten  years and three months from that date.  Thus even if Gilbert
is  a  model prisoner there is only the slightest chance that  he
will be released before Belinda reaches adulthood.

     38     While  we may consider the merits of a moot issue  if
such  consideration is in the public interest, the facts of  this
case  do  not  meet the three-prong test for the public  interest
exception  enumerated in Kodiak Seafood Processors, 900  P.2d  at
1196.  Gilberts status as an Indian custodian is not likely to be
repeated,  and the issues raised are not likely to evade  review.
While  the  concerns raised are important, they  do  not  justify
overriding the mootness doctrine.

     39    See Santosky v. Kramer, 455 U.S. 745, 766-67 (1982).

     40    Ch. 20,  1-3, 11, SLA 2006.

     41    Ch. 20,  12-13, SLA 2006.  The legislative action would
cause  Gilberts constitutional challenge to be moot.  See,  e.g.,
Krohn  v. State, Dept of Fish & Game, 938 P.2d 1019, 1023 (Alaska
1997) (Repeal of the regulations therefore moots the issues Krohn

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