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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Terry S. v State, Dept of Health & Social Services, Office of Children's Services (09/28/2007) sp-6172

Terry S. v State, Dept of Health & Social Services, Office of Children's Services (09/28/2007) sp-6172, 168 P3d 489

     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

TERRY S., )
) Supreme Court No. S- 12463
Appellant, )
) Superior Court Nos.
v. ) 3AN-03- 00406/00407/00408 CP
) 3AN-05- 00449/00450/00451 P/G
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) O P I N I O N
SOCIAL SERVICES, OFFICE OF )
CHILDRENS SERVICES, ) No. 6172 September 28, 2007
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Kenneth C. Kirk, Kenneth Kirk &
          Associates,  Anchorage, for Appellant.   Mary
          Ann  Lundquist,  Assistant Attorney  General,
          Fairbanks,  and  Talis J.  Colberg,  Attorney
          General,  Juneau,  for  Appellee.   Lisa   B.
          Nelson, Anchorage, for Guardian Ad Litem.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          FABE, Chief Justice.

I.   INTRODUCTION
          Terry  S.  appeals a number of orders stemming  from  a
guardianship case involving his three children.  We conclude that
the superior court did not err in (1) rejecting Terrys motion  to
disqualify the superior court judge presiding over the case;  (2)
finding  by  clear and convincing evidence that Terrys  continued
custody  of  the  children would result in serious  emotional  or
physical   damage  to  the  children;  (3)  requiring  Terry   to
participate  in  sex  offender  treatment  before  being  allowed
visitation with his children; or (4) failing to apply the  beyond
a reasonable doubt standard to its findings.  We therefore affirm
the superior courts decisions and orders in all respects.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Terry  S. and Veronica L. had three daughters together.
At  the  time this appeal was briefed, the oldest daughter,  Jodi
L.,  was sixteen years old; Tania L. was twelve; and Bobbi L. was
eight.1   All  three  children  are Indian  children  within  the
meaning of the Indian Child Welfare Act.
          The  family life of Terry, Veronica, and their children
was  tumultuous.  Terry and Veronicas relationship was  on  again
off  again.   The children lived with both parents, together  and
separately, moving frequently and often unexpectedly.  There were
multiple  allegations that both parents had engaged in  substance
abuse  and that Terry had engaged in domestic violence.  On three
separate occasions, Veronica filed for restraining orders against
Terry.   And, most relevant to this appeal, on May 28, 2003,  the
eldest  daughter, Jodi, reported that Terry had  sexually  abused
her.   According  to Jodi, Terry molested her two times,  warning
her each time that her mother would be harmed or die if Jodi told
anyone  about the incidents.  Terry denied and continues to  deny
that these incidents occurred.
          On  September 5, 2003, Veronica died unexpectedly.   On
the  same  day,  the  Office  of Childrens  Services  (OCS)  took
emergency  custody  of all three children and  placed  them  with
their  maternal grandmother.  According to OCSs child in need  of
aid  (CINA)  petition,  emergency custody was  justified  by  the
mothers  death and Terrys history of domestic violence,  assault,
substance abuse, and sexual abuse of his oldest daughter.
     B.   Proceedings
          1.   The CINA case
          On  January  23, 2004, Terry entered into a stipulation
and  order  in open court before Superior Court Judge  Sharon  L.
Gleason.   At  the  outset  of  this stipulation,  Terry  agreed,
without  admitting  any  criminal act,  that  his  children  were
children in need of aid because they had been exposed to domestic
violence  and  because Jodi had disclosed  sexual  abuse  by  her
father.  Terry, however, expressly denie[d] the sexual abuse.
          The stipulation and order then went on to note that the
superior  court had found by clear and convincing  evidence  that
the  children would likely suffer serious emotional  or  physical
damage  if  left  in the custody of the father;  that  OCS  would
retain temporary custody of the children; that the children would
continue in their placement with their maternal grandparents; and
that  OCS  had devised a case plan for family reunification  that
all parties agreed was reasonable.
          As  part  of  OCSs  case plan, Terry  was  required  to
participate  in  a sexual offender/mental health  assessment  and
          comply with any treatment recommendations.  Terry agreed in the
stipulation  and  order  that this case  plan  was  in  the  best
interests of his children and expressed his intention to work  on
a reunification plan to regain custody of [Tania and Bobbie].  He
noted, however, that he underst[ood] and respect[ed] [Jodis] wish
not to live with him at the present time.
          After  the  stipulation  and  order  was  entered,  the
guardian  ad litem (GAL) moved the superior court for  a  factual
finding  by clear and convincing evidence that Terry had in  fact
sexually  abused Jodi.  Terry objected, arguing that he  had  not
had  an  opportunity to present evidence due to the execution  of
the stipulation and order.  To address this concern, the superior
court  scheduled an evidentiary hearing at which  Terry  and  all
other  parties  would  be  afforded  an  opportunity  to  present
additional evidence.
          The  evidentiary hearing took place as  scheduled,  but
neither  Terry nor any other party presented additional evidence.
As   a   result,  the  superior  court  ultimately  found  by   a
preponderance  of  the evidence that Terry  had  sexually  abused
Jodi.  The superior court did not, however, make this finding  by
clear and convincing evidence.
          In  April  2004  the superior court held a  disposition
hearing.   A month after this hearing, the superior court  issued
an order in which it found that OCS was making reasonable efforts
to  provide  remedial  services and  rehabilitative  programs  to
reunify  the  family; that although the father was in  compliance
with  OCSs case plan, OCSs efforts at reunification had  not  yet
proven successful; and that the children would therefore continue
in OCSs custody for a period not to exceed two years.
          In  November 2004 the superior court held a  permanency
hearing.   After the close of this hearing, the court found  that
the  children  continued to be children  in  need  of  aid;  that
efforts  to  reunify the family had not yet been successful;  and
that  removal  remain[ed] necessary to prevent imminent  physical
damage or harm to the children.  It then went on to explain  that
the  permanent plan for Jodi was guardianship with  her  maternal
grandmother  while the permanent plan for the other two  children
was   reunification  with  their  father  conditioned  upon   his
successful completion of sex offender treatment.

          2.   The guardianship case
          On   April   1,   2005,  OCS  filed  a   petition   for
guardianship,  asking that the childrens maternal grandmother  be
named as all three childrens guardian.  Although OCS could simply
have  requested the superior court overseeing the  CINA  case  to
appoint  a guardian as part of the ongoing CINA proceedings,2  it
instead  chose  to  frame its request as a separate  guardianship
case under AS 13.26.030.085.
          Because  the  Public  Defender  Agency  does  not  have
statutory authority to represent parents in guardianship  cases,3
Terrys  assistant  public  defender   who  had  represented   him
throughout  the entirety of the CINA proceedings  was  unable  to
represent  Terry  with  regard to OCSs  efforts  to  appoint  the
childrens  maternal grandmother as guardian.   As  the  assistant
          public defender noted to the superior court at the time, [t]he
Alaska  Public  Defender  Agency cannot represent  parties  in  a
guardianship   proceeding.   Thereafter,  Terry   requested   and
received  new court-appointed counsel.  On May 18, 2005, attorney
Leonard  Anderson was appointed as counsel for Terry but withdrew
from the case a month later based on an undisclosed conflict.  On
June  29 attorney Kenneth Kirk was appointed as counsel for Terry
and has continued to represent him since.
          The   guardianship  case  was  initially  assigned   to
Superior  Court  Judge  Morgan  Christen,  but  was  soon   after
administratively reassigned to Judge Gleason  the same judge  who
was  already overseeing the CINA case.4  On July 7, 2005, shortly
after  Mr. Kirk was assigned as his counsel, Terry filed a motion
to  set aside the judicial assignment of Judge Gleason.  In  this
motion,  Terry  noted that he would have moved to disqualify  the
judge earlier but had been awaiting counsel.  He also noted  that
this  motion  should  be  count[ed] as  [his]  one  discretionary
preemption.  In response, OCS filed an opposition to  the  motion
to  set  aside  the  judicial assignment, and the  GAL  moved  to
consolidate the CINA and guardianship cases.  On July  19,  2005,
Superior Court Judge Sen K. Tan denied Terrys motion to set aside
the  judicial  assignment.   On August  3,  2005,  Judge  Gleason
granted   the   GALs  motion  and  consolidated  the   CINA   and
guardianship cases.
          Terry   did   not  oppose  the  entry  of  letters   of
guardianship  for  Jodi, which were signed on October  24,  2005.
Thereafter,  the  superior  court held  a  four-day  guardianship
proceeding with regard to the two other children.  On February 9,
2006,  the  superior court issued a memorandum  decision  on  the
issue  of  guardianship.  In this decision,  the  superior  court
found  by  clear and convincing evidence that Terry had  sexually
abused  Jodi.   The  court then went on  to  find  by  clear  and
convincing  evidence  that placing the two  younger  children  in
Terrys  home would likely result in serious emotional or physical
damage  to  the  children.  On the basis  of  this  finding,  the
superior  court concluded that the childrens maternal grandmother
would  be  appointed guardian as soon as letters of  guardianship
were filed.
          In  response  to  the superior courts  decision,  Terry
moved  for clarification on whether the guardian would  have  the
right  to  determine whether there should be contact between  the
children  and  their father.  On May 8, 2006, the superior  court
entered  new letters of guardianship for the two younger children
which  stated that [i]f the father of the child is not  satisfied
with  the  amount  of visitation allowed, he may  petition  th[e]
court  for  specific visitation rights.  Soon  thereafter,  Terry
petitioned  the  superior court for specific  visitation  rights.
After further proceedings, the superior court issued an order  in
which  it  concluded that Terry was not entitled  to  visitation,
either   supervised  or  unsupervised,  until   he   successfully
participates in sex offender treatment.
          Terry now appeals.
III. STANDARD OF REVIEW
          The  proper  application  of  the  rule  governing  the
          peremptory disqualification of judges in civil cases  Alaska Rule
of Civil Procedure 42(c)  is a question of law which we review de
novo.5
          [W]hether  substantial evidence supports the [superior]
courts  conclusion [under the Indian Child Welfare Act]  that  an
Indian child is likely to be seriously harmed if returned to  his
parent is a mixed question of fact and law.6
          A  superior courts factual findings are reviewed  under
the   clearly  erroneous  standard.7   A  superior  courts  legal
findings are reviewed de novo.8  We may affirm a judgment on  any
grounds that the record supports, even grounds not relied  on  by
the superior court.9
IV.  DISCUSSION
          Terry raises four arguments on appeal: (1) the superior
court erred in denying his motion to disqualify Judge Gleason  in
the guardianship case; (2) the superior court erred in finding by
clear  and  convincing evidence that Terrys continued custody  of
the children would result in serious emotional or physical damage
to  the children; (3) the superior court erred in requiring Terry
to  participate  in sex offender treatment before  being  allowed
visitation with his children; and (4) the superior court  applied
the  wrong  legal  standard  since  the  requirement  that  Terry
participate  in sex offender treatment amounted to a constructive
termination of Terrys parental rights.
     A.   The Superior Court Did Not Err in Denying Terrys Motion
          To Disqualify Judge Gleason in the Guardianship Case.
          
          Alaska  Statute  22.20.022 provides for the  peremptory
disqualification of
district  court and superior court judges in civil  and  criminal
actions.10  As we have previously explained, this statute creates
and  defines  a right  the right to have a fair trial  before  an
unbiased and impartial judge.11  Although this substantive  right
is statutory in origin, its scope and procedural requirements are
controlled  in  civil  cases by Alaska Rule  of  Civil  Procedure
42(c).12  Rule 42(c) maintains, in relevant part, that each  side
[to  a civil action] is entitled as a matter of right to a change
of  one  judge  and  of one master and that  this  right  may  be
exercised  simply by filing a pleading naming  the  judge  to  be
changed without specifying any grounds for the change.13  The rule
further specifies that the right to change a judge is waived when
a  party  knowingly  participates  before  that  judge  in  [a]ny
judicial  proceeding which concerns the merits of the action  and
involves the consideration of evidence or of affidavits.14
          In  the  case  at hand, Terry argues that the  superior
court violated his statutory right to peremptorily disqualify one
judge  when  it denied his motion to set aside the assignment  of
Judge  Gleason to the guardianship case.  To support this  claim,
Terry  cites  our  decision  in Staso  v.  State,  Department  of
Transportation15 and characterizes that case as creating a bright-
line  rule that litigants are entitled to peremptorily disqualify
one judge in any case that involves a new case number, new filing
fees,  and  new process.  Terry notes that in the case  at  hand,
although  OCS  could  have simply requested  the  superior  court
          overseeing the CINA case to appoint a guardian as part of the
ongoing CINA proceedings,16 it instead chose to bring its request
as  a separate guardianship case under AS 13.26.030.085.  Because
the  guardianship case was brought as a separate case  with a new
case number, new filing fees, and new process  Terry asserts that
he should have been entitled to one peremptory challenge.
          OCS  disagrees  and argues that Staso  only  created  a
bright-line  rule  with  regard to refiled  civil  cases  and  is
therefore inapplicable to the case at hand.  In support  of  this
argument,  OCS notes that Staso discussed, but did  not  disavow,
pre-Staso cases in which we held that a party is not entitled  to
a  second  peremptory disqualification of a judge, or  to  relief
from the waiver or timeliness requirements of Rule 42, where  the
proceeding  in which the disqualification sought is ancillary  to
and a continuation of the underlying . . . action. 17  Looking to
these pre-Staso cases, OCS reasons that the guardianship case was
functionally another phase of the CINA proceeding, rather than  a
new proceeding;18 that Judge Gleason had presided and continued to
preside over the CINA proceeding; and that Terry therefore waived
his   right   to   peremptorily  disqualify  Judge   Gleason   by
participating in the CINA case.
          Ultimately,  we need not decide whether Stasos  bright-
line  rule  applies to all separately filed cases  because  sound
policy   requires  that  the  guardianship  and  CINA  cases   be
considered  and treated as if they were a single,  unified  case.
Although  the relevant statutes could be read, as they apparently
were  here, to permit OCS to split the issue of guardianship  off
from  an  ongoing  CINA  proceeding,  that  reading  raises   the
problematic  specter of forum shopping.  As OCS notes,  in  cases
such as this, the issue of guardianship is intimately related  to
and   properly  understood  as  a  phase  of  the  ongoing   CINA
proceeding.   This being true, reading the relevant  statutes  to
afford OCS the option of raising the issue of guardianship  in  a
separate  and  distinct  case would effectively  afford  OCS  the
option  of trying a phase of an ongoing CINA proceeding before  a
new  judge.   This sort of forum shopping is generally  improper,
and  we therefore conclude that when there exists an ongoing CINA
proceeding,  any  attempts to appoint a guardian   whether  filed
pursuant  to AS 47.10.110 or AS 13.26.030.085  must be considered
and treated, in all respects, as part of the original CINA case.19
          Given  this  conclusion, the fact that OCS  raised  the
issue of guardianship under AS13.26.030.085 did not give rise  to
a  separate and distinct guardianship case and therefore did  not
reinvigorate  Terrys  statutory right to peremptorily  disqualify
Judge   Gleason.    And  because  Terry  had  already   knowingly
participated before Judge Gleason in multiple phases of the  CINA
proceeding  that  concern[ed] the merits  of  the  action,  Terry
waived  his right to disqualify Judge Gleason with regard to  the
guardianship phase of the case.20  For these reasons,  we  affirm
the decision of the superior court.
     B.   The  Superior Court Did Not Err in Finding by Clear and
          Convincing  Evidence that Terrys Continued  Custody  of
          the  Children  Would  Result in  Serious  Emotional  or
          Physical Damage to the Children.
          
          As  already  noted,  all three of Terrys  children  are
Indian  children within the meaning of the Indian  Child  Welfare
Act.  Under this act, the appointment of a guardian constitutes a
foster care placement21 and is therefore subject to the following
restriction:
          No  foster  care placement may be ordered  in
          such   proceeding  in  the   absence   of   a
          determination,   supported   by   clear   and
          convincing  evidence, 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.[22]
          
Stated more simply, under the Indian Child Welfare Act,  in order
for the superior court to appoint a guardian for Terrys children,
the  court was required to find by clear and convincing  evidence
that  Terrys  continued  custody of his children  was  likely  to
result in serious emotional or physical damage to them.  Although
the  superior  court  made this finding, Terry  argues  that  the
finding was not supported by the record.
          Terry  argues that [t]he only way the trial court could
have  possibly made such a finding . . . would [have]  be[en]  to
find  that  the father had molested the oldest child,  Jodi.   He
then  goes on to insist that the superior courts finding by clear
and  convincing  evidence that Terry had  in  fact  molested  his
daughter was not adequately supported by evidence, and should  be
overturned.   According  to  Terry, the  only  evidence  that  he
sexually abused Jodi was Jodis own testimony, and this testimony,
he   argues,  was  suspect,  riddled  with  inconsistencies,  not
supported  by medical evidence, and sufficiently negated  by  his
own testimony.
          First, Terry complains that the only evidence of sexual
abuse  was  Jodis  own  testimony.  In his  words,  [t]here  were
apparently no witnesses to such an incident, so the only evidence
would  have  been  Jodis testimony.  However,  the  lack  of  any
witnesses  is not altogether surprising given the nature  of  the
allegations  an abusive parent can easily take measures to  avoid
third-party  witnesses.   For  instance,  in  this   case,   Jodi
testified that the first time her father sexually abused her,  he
did  so  on a night when both of her two sisters were staying  at
their grandmothers house.
          Second, Terry complains that Jodis testimony was highly
suspect.  He notes that [t]he day the daughter first accused  her
father, the parents had just been in court fighting over custody,
and  he had been awarded fifty-one percent custody; that Jodi was
well  aware that when she told OCS things, her mother was  likely
to  find  out;  and that Jodi is a girl who has had extraordinary
psychological  trauma.23  However, even if true,  none  of  these
facts  in  and  of  themselves cast doubt upon  Jodis  testimony.
Moreover, all of this information was before the superior  court,
and   that   court  found  Jodis  testimony  to  be   persuasive.
Particularly compelling to [the superior] court was her statement
          at the guardianship proceeding that she had come back to court to
testify so as to insure that her sisters were not exposed to  the
same risk.  The credibility of Jodis testimony was a question for
the superior court, and the superior court answered that question
decisively.24
          Third,   Terry   argues   that  Jodis   testimony   was
inconsistent.   For  example, he asserts  that  she  changed  her
testimony  with regard to the age at which she was  subjected  to
sexual  abuse; whether or not she experienced bleeding after  the
sexual abuse; whether the sexual abuse occurred in Mountain  View
or  Wasilla;  and how she was held down during the sexual  abuse.
However,  the bulk of these inconsistencies are minor  in  nature
and wholly understandable given Jodis minority at the time of the
sexual  abuse.  Moreover, the issue of inconsistent testimony  is
largely  an issue of the credibility of that testimony  and  this
is, as already noted, an issue for the superior court.
          Fourth,  Terry notes that there is no medical  evidence
of  any  sexual abuse and points to information from  a  physical
examination  of  Jodi that was consistent with her  having  never
engaged  in  sexual intercourse.25  However, the  medical  report
specifically stated that a normal [genital] exam does not exclude
the possibility of sexual and/or physical abuse and/or neglect.
          Finally,  Terry  complains that his own  testimony  and
repeated denials of sexual abuse were sufficient to negate  Jodis
testimony.   However,  the  superior court  expressly  considered
Terrys  testimony  and  found that it  tended  to  undermine  his
account.   According  to  the superior  court,  Terrys  testimony
reflected  a disturbing pattern of Terrys inability  to  see  his
past  conduct  in  an accurate light.  In particular,  the  court
noted  that  Terry  does not accept personal responsibility  with
respect  to  the  domestic  violence he perpetrated  against  the
mother  of  his children or the excessive physical punishment  he
leveled  against his children.  As a result, the  superior  court
concluded  that  Terrys testimony that he did not sexually  abuse
[Jodi]  is likely to have been distorted.  This line of  analysis
was  supported by the record.26  And, once again, the credibility
of  Terrys  testimony was a question properly  for  the  superior
court.
          Overall,  there  is ample evidence  in  the  record  to
support  the  superior  courts finding by  clear  and  convincing
evidence  that  Terry  had sexually abused  his  daughter.   Jodi
recounted  the  allegations  of  sexual  abuse  multiple   times,
including  when she was deposed and when she testified at  trial,
and  the  core of these allegations  that her father had sexually
abused her on two separate occasions  remained consistent.  Also,
Jodis  therapist  testified that Jodi had  discussed  the  sexual
abuse  during her counseling sessions and had never recanted  her
allegations or expressed any confusion over the identity  of  the
perpetrator.   Given this evidence, the superior  court  did  not
err.
          Moreover,  Terry  is simply incorrect when  he  asserts
that  Jodis  allegations of sexual abuse were the  only  evidence
upon  which  the  superior court could have based its  conclusion
that  Terrys  continued  custody of his children  was  likely  to
          result in serious emotional or physical damage to them.  Indeed,
the  superior court explicitly relied upon a number of  different
pieces  of evidence, including evidence of Terrys physical  abuse
of  the  childrens mother, as well as testimony by the  childrens
therapist,  who  stated  that  the children  were  only  recently
beginning to disclose in therapy the extent of the physical abuse
that their father had inflicted upon them.
          For all of these reasons, we conclude that the superior
court did not err in finding that Terrys continued custody of his
children would result in serious emotional or physical damage  to
them.
     C.   The  Superior Court Did Not Err by Requiring  Terry  To
          Participate  in  Sex  Offender Treatment  Before  Being
          Allowed Visitation with His Children.
          
          In  its order regarding visitation, the superior  court
ruled that Terry would not be allowed any form of visitation with
his  children  until  he  demonstrates that  he  is  successfully
participating  in sex offender treatment.  As Terry  points  out,
sex  offender treatment generally requires the offender to  admit
to  having committed sexual abuse.  As such, the superior  courts
order  effectively means, in Terrys words, that the father cannot
have  any contact with his younger children, at least until  they
turn  eighteen,  unless  he  says that  he  molested  his  oldest
daughter.
          Terry argues that the superior courts requirement  that
he   successfully  participate  in  sex  offender  treatment   is
improper.  He analogizes this requirement to a requirement that a
person  convicted of a crime admit guilt at sentencing and points
to  Alaskas  consistent view . . . that the  trial  court  should
place  very little weight on the remorse issue in sentencing,  if
the  defendant has not admitted guilt.27  According to him, [t]he
courts  ought  not to make things unduly difficult for  Terry  S.
just because he refuses to admit to something which he insists he
did not do.
          However,  as  OCS  points out,  our  Nelson  cases  are
directly on point and preclude Terrys argument.28  In Nelson I, a
father appealed the superior courts order conditioning visitation
on  the  fathers  successful  participation  in  a  sex  offender
treatment  program.29   The father had  begun  the  sex  offender
program,  but  refused to admit in therapy that he  had  sexually
abused his daughter, and the therapist cancelled the treatment.30
Although we recognized that the superior courts order would place
an  innocent  father in a difficult position   requiring  him  to
admit[] to acts he did not commit . . . [or] be denied visitation
with  his  daughter   we nonetheless concluded  that  the  orders
severity  [was] justified by the overriding need to protect  [the
child] from further harm.31
          Terry attempts to distinguish this case from the Nelson
cases.  According to him, [t]he most important difference is that
Nelson  had  agreed to a stipulation that he had sexually  abused
his  daughter.   This, however, is not a meaningful  distinction.
As  OCS  notes in its briefing, the key fact in the Nelson  cases
(as  here) was the finding by clear and convincing evidence  that
          the father had sexually abused his child.32  Indeed, in Nelson III
we  described  Nelson I as holding that the trial court  did  not
clearly err in concluding that [the father] sexually abused  [his
child] and therefore did not abuse its discretion in conditioning
supervised  visitation  on [the fathers]  participation  in  sex-
offender treatment.33
          Here,  the superior court found by clear and convincing
evidence that Terry had sexually abused his eldest daughter.   As
such,  just  as in Nelson, the severity of the courts  order  was
justified by the overriding interest in protecting the children.
     D.   The  Superior  Courts Order Conditioning Visitation  on
          Terrys Participation in Sex Offender Treatment Did  Not
          Amount to a Constructive Termination of Terrys Parental
          Rights and Therefore Did Not Require Evidence Beyond  a
          Reasonable Doubt.
          
          Terry argues that because he will not admit to sexually
abusing  his  daughter,  the superior courts  order  conditioning
visitation with his children on his participation in sex offender
treatment effectively terminated his parental rights.   As  such,
he  contends  that  the superior courts order  must  be  reversed
because  it  did  not  meet  the legal standard  for  terminating
parental rights under the Indian Child Welfare Act.  As he notes,
under  that act, parental rights may not be terminated without  a
determination, supported by evidence beyond a reasonable doubt, .
.  . that the continued custody of the child by the parent . .  .
is  likely  to result in serious emotional or physical damage  to
the child.34
          Again,  however,  the  Nelson  cases  foreclose  Terrys
argument.   In  Nelson  III, although  we  decline[d]  to  decide
whether a court could constructively terminate parental rights in
the  manner  asserted  by [the father], we nonetheless  concluded
that  the  trial courts restriction on visitation [was]  not,  in
effect, a termination of [the fathers] parental rights.35  Because
the  superior  courts order in the case at hand was  functionally
equivalent  to  the  order  in Nelson,  the  same  conclusion  is
applicable  here:  the superior courts order did not  effectively
terminate Terrys parental rights.
V.   CONCLUSION
          For  the reasons detailed above, we AFFIRM the superior
courts orders.
_______________________________
     1     We  use  pseudonyms for all family members to  protect
their privacy.

     2     AS 47.10.110 provides that if, during the course of  a
CINA  case, it appears to the court that the welfare of  a  minor
will be promoted by the appointment of a guardian or custodian of
the minors person, the court may make the appointment.

     3    AS 18.85.100(a).

     4     As Terry points out, it is not entirely clear how  and
why  the guardianship case was reassigned to Judge Gleason.   The
reassignment order was only sent to the Attorney Generals Office,
and  no  other  party knew about it.  Indeed,  the  GAL  actually
requested reassignment of the case to Judge Gleason over a  month
after the case had already been reassigned to Judge Gleason.

     5     Staso  v.  State, Dept of Transp., 895 P.2d  988,  990
(Alaska 1995).

     6     E.A.  v. State Div. of Family & Youth Servs., 46  P.3d
986, 989 (Alaska 2002).

     7    Id.

     8    Id.

     9     Van  Sickle v. McGraw, 134 P.3d 338, 341 n.10  (Alaska
2006).

     10    AS 22.20.022(a) states, in relevant part:

          If a party or a partys attorney in a district
          court  action  or  a superior  court  action,
          civil   or   criminal,  files  an   affidavit
          alleging  under oath the belief that  a  fair
          and  impartial trial cannot be obtained,  the
          presiding  district court or  superior  court
          judge,  respectively,  shall  at  once,   and
          without requiring proof, assign the action to
          another  judge  of the appropriate  court  in
          that district, or if there is none, the chief
          justice  of the supreme court shall assign  a
          judge for the hearing or trial of the action.
          
     11     In  re G.K., 497 P.2d 914, 915 (Alaska 1972) (quoting
Channel  Flying,  Inc. v. Bernhardt, 451 P.2d  570,  576  (Alaska
1969)).

     12     Tunley  v. Municipality of Anchorage Sch. Dist.,  631
P.2d  67,  71  (Alaska 1981).  In criminal cases, the  scope  and
procedures associated with the right are controlled by Civil Rule
42(c)s   criminal  law  counterpart,  Alaska  Rule  of   Criminal
Procedure 25(d).  Id.

     13      Civil   Rule  42(c)  clarifies  the  procedure   for
disqualifying a judge in the following manner:

          A  party  wishing to exercise  the  right  to
          change   of  judge  shall  file  a   pleading
          entitled  Notice  of Change  of  Judge.   The
          notice may be signed by an attorney, it shall
          state  the  name of the judge to be  changed,
          and  it shall neither specify grounds nor  be
          accompanied by an affidavit.
          
     14    Alaska R. Civ. P. 42(c)(4)(i).

     15    895 P.2d 988 (Alaska 1995).

     16    AS 47.10.110 provides that if, during the course of  a
CINA  case, it appears to the court that the welfare of  a  minor
will be promoted by the appointment of a guardian or custodian of
the minors person, the court may make the appointment.

     17     895  P.2d  at  991 (alteration in original)  (quoting
Webber v. Webber, 706 P.2d 329, 330 (Alaska App. 1985)).

     18     OCS  also  describes  the guardianship  case  as  the
disposition phase of the CINA proceeding.

     19    We briefly note that we need not reverse here based on
concerns  of  forum  shopping because no forum shopping  actually
occurred;  the guardianship and CINA cases were consolidated  and
properly heard by the same judge.

     20    See Alaska R. Civ. P. 42(c)(4)(i).

     21    25 U.S.C.  1903(1)(i) defines foster care placement as
the following:

          [A]ny  action removing an Indian  child  from
          its  parent or Indian custodian for temporary
          placement in a foster home or institution  or
          the  home of a guardian or conservator  where
          the  parent  or Indian custodian cannot  have
          the  child  returned upon demand,  but  where
          parental rights have not been terminated .  .
          . .
          
     22    25 U.S.C.  1912(e).

     23    As Terry notes:

          She was molested by an uncle.  Her mother  at
          one point had a sex offender for a boyfriend.
          A  close friend of hers was raped by her  own
          father.   Her  mother died . .  .  .  And  to
          compound  everything, on the night after  her
          mother died she was forcibly raped by another
          teenager.   As a result of all this  she  has
          been  in  [the Alaska Psychiatric  Institute]
          and in another psychiatric facility.
          
     24     See Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005)
(noting  that  [i]t  is  the  job of the  trial  court,  not  the
appellate court, to judge the credibility of the witnesses and to
weigh conflicting evidence) (quoting Native Alaskan Reclamation &
Pest  Control,  Inc. v. United Bank Alaska, 685 P.2d  1211,  1215
(Alaska 1984)).

     25     The  evaluation  report of her  physical  examination
stated that her [h]ymen is estrogenized, redundant and annular in
shape, with smooth edges. No evidence of transection.

     26    For instance, when asked at trial if he was the victim
in the domestic abuse that occurred, Terry responded, Yes, I am.

     27    Terry cites specifically to Willard v. State, 662 P.2d
971, 979 (Alaska App. 1983).

     28     Although there are three Nelson cases, only  two  are
relevant  here:   Nelson  v. Jones, 781 P.2d  964  (Alaska  1989)
(Nelson  I)  and  Nelson  v. Jones, 944 P.2d  476  (Alaska  1997)
(Nelson III).

     29    781 P.2d at 969.

     30    Id. at 967.

     31    Id. at 969.

     32    944 P.2d at 478.

     33    Id.

     34    25 U.S.C.  1912(f).

     35    944 P.2d at 480.

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