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


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jude M. v. State, Dept. of Health & Social Services, Office of Children's Services (4/28/2017) sp-7168

Jude M. v. State, Dept. of Health & Social Services, Office of Children's Services (4/28/2017) sp-7168

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                 

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                    

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



JUDE  M.,                                                    )  

                                                             )         Supreme  Court  No.  S-16233  

                              Appellant,                     )  

                                                                                                                               

                                                             )         Superior Court No. 3AN-11-00121 CN  

                    v.                                       )  

                                                             )                             

                                                                       O P I N I O N  

                    

STATE OF ALASKA,                                             )  

                                                  

DEPARTMENT OF HEALTH &                                       )                                           

                                                                       No. 7168 - April 28, 2017  

                                                             )  

SOCIAL SERVICES, OFFICE  

                              

OF CHILDREN'S SERVICES,                                      )  

                                                             )
  

                              Appellee.                      )
  

                                                             )
  



                                                                                                        

                    Appeal from the Superior Court of the State of Alaska, Third  

                                                                                          

                    Judicial District, Anchorage, Andrew Guidi, Judge.  



                                                                                                          

                    Appearances:              Olena   Kalytiak   Davis,   Anchorage,   for  

                                                                                                 

                    Appellant.            Laura       Fox,      Assistant        Attorney         General,  

                                                                                                     

                    Anchorage, and Jahna Lindemuth, Attorney General, Juneau,  

                                                                                                           

                    for Appellee.  Anita L. Alves, Assistant Public Advocate and  

                                                                                                            

                    Richard Allen, Public Advocate, Anchorage, for Guardian Ad  

                    Litem.  



                                                                                                     

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                       

                    and Carney, Justices.  



                                         

                    MAASSEN, Justice.
  

                                                                                                     

                    STOWERS, Chief Justice, with whom WINFREE, Justice,
  

                                                                                      

                    joins,  concurring in part and dissenting in part.
  


----------------------- Page 2-----------------------

I.          INTRODUCTION  



                                                                                                                                                  

                       A father appeals a superior court order granting long-term guardianship of  



                                                                                                                                                 

his  daughter  to  maternal  relatives  in  another  state.                                       The  father  has  a  history  of  



                                                                                                                                             

inappropriate  sexual  relationships  and  during  four  years  of  the  child's  life  was  



                                                                                                                                               

incarcerated following a federal conviction for transportation of child pornography. The  



                                                                                                                                            

superior court ordered the guardianship based in part on expert testimony that the father  



                                                                                                                                               

could not yet be left alone with his daughter, given the state of his progress with sex  



                                                                                                                               

offender treatment, and in part because his probation conditions prohibited unsupervised  



                                                

contact with anyone under 18.  



                                                                                                                                       

                       We conclude that the superior court had the statutory authority to establish  



                                                                                                                                               

a guardianship under these circumstances. But the court's finding that the daughter was  



                                                                                                                                               

likely to suffer serious emotional or physical harm if returned to her father's care was  



                                                                                                                                              

based in part on findings that lack the required  basis in the expert testimony.   We  



                                                                                                                                                

therefore remand for the superior court to consider whether the remaining findings are  



                                                                  

sufficient to support the guardianship order.  



II.         FACTS AND PROCEEDINGS     



           A.          Facts  

                       Dana was born in July 2008 to Jude and Marya M.1  

                                                                                                                 Marya has five other        



children, Dana's half-brothers and -sisters.                                  Dana is an Indian child under the Indian                    



                                                2  

Child Welfare Act (ICWA).                           



            1          We  use  pseudonyms  to  protect  the  parties'  privacy.  



            2          25  U.S.C.     1903(4)  (2012).   



                                                                        -2-                                                                      7168  


----------------------- Page 3-----------------------

                                           1.                   Dana's placement history                                        



                                          Dana lived with both parents for her first nine months, but Jude then took                                                                                                                                                



her away because of his concerns about Marya's heavy drinking.                                                                                                                                                    Soon afterward the   



police   began   investigating   Jude   for   possession   of   child   pornography   -   explicit  



photographs of his teenaged half-sister.                                                                                       The   police contacted the Office of Children's                                                                   



 Services (OCS), which placed Dana with Jude's friends, the Carelawns.                                                                                                                                                                     Jude visited   



Dana several days a week until his arrest in November 2009.  Dana was then returned                                                                                                                                                                     



to her mother's custody and OCS closed its file.                                                                                                        In December 2009 Jude pleaded guilty                                                                    



to the federal offense of transporting child pornography across state lines and was                                                                                                                                                                                  



 sentenced to 60 months in prison followed by five years of supervised release.                                                                                                                                                  



                                          Dana lived with her mother and half-siblings for about a year and a half.                                                                                                                                                                   



OCS opened this case in April 2011, when Marya left the children alone in an apartment.                                                                                                                                                                                               



Dana was again placed with the Carelawns until July 2013, when OCS decided she                                                                                                                                                                                         



 should   live   with  Marya's   sister,   Natalia   Winsome,   in   another   state.     Although   the  



Carelawns wanted                                              to   adopt Dana,                                    Natalia's family was a priority                                                                          placement under   



                       3  

ICWA.                                                                                                                                                                                                                                               

                             The superior court upheld OCS's transfer decision in February 2014 following  



                                                                                                                                                                                                                                                                     

a contested placement hearing, and OCS moved Dana out of state in late May to live with  



                                                 

the Winsomes.  



                                                                                    

                                          While living with the Winsomes, Dana was sexually abused by Natalia's  



                                                                                                                                                                                                                                                                     

minor son Roland.  When Dana told the Winsomes about the abuse in April 2015, they  



                                                                                                                                                                                                                                                                     

immediately  took  her  to  the  hospital.                                                                                         Roland  was  arrested  for  sexual  assault  and  



                                                                                                                                                                                                                                                                

removed from the home. At the time of the second termination trial Dana was still living  



                                                                                                                                                                                                                                                                        

with  the  Winsomes,  and  the entire family  was participating  in  a state program for  



                     3                    See 25 U.S.C.  1915(b) (2012).  In addition to the family relationship,  

                                                                                                                                                                                                                                          

Natalia and Marya are members of the same Alaska Native tribal entity.  

                                                                                                                                                                                                                                      



                                                                                                                                     -3-                                                                                                                                        7168  


----------------------- Page 4-----------------------

families suffering the effects of sexual abuse.  Dana had received individual treatment  



as well.  

     



                    2.        Jude's sexual history and treatment  

                                                                         



                    Jude  has  a  history  of  inappropriate  sexual  relationships  beginning  in  

                                                                                                                               



childhood and including sex with cousins, an ex-girlfriend of his father, a half-sister, and  

                                                                                                                              



(more or less contemporaneously) the half-sister's mother, his former stepmother.  Jude  

                                                                                                                            



spent several years of his 60-month prison sentence at Devens Federal Medical Center  

                                                                                                                         



in Massachusetts, which provides a voluntary program for sex-offender rehabilitation.  

                                                                                                                                    



There he was diagnosed with two paraphilic disorders:   "hebephilia" because of his  

                                                                                                                              



strong sexual attraction to teenaged girls and "incest" because of his relationship history  

                                                                                                                        



and sexual fantasies.  

                                 



                    Jude successfully completed Devens's intensive sex-offender treatment  

                                                                                                                    



program, and a risk assessment rated him as having a "Low-Moderate" risk of sexual  

                                                                                                                         



recidivism.  A Relapse Prevention Plan recommended that he "should have NO contact  

                                                                                                                        



with any children under the age of 18 . . . unless supervised by a responsible adult who  

                                                                                                                            



is aware of [his] sex offense history."  The Plan advised that if Jude were allowed to live  

                                                                                                                             



with Dana he "should not be alone with his daughter at any time nor should he enter her  

                                                                                                                              



bedroom" or "act as a chaperone for his daughter and her friends."  In December 2013  

                                                                                                                           



Jude was relocated from Devens to a halfway house in Anchorage, from which he was  

                                                                                                                             



released  in  May  2014.               He  continued  treatment  locally  with  Dr.  Allen  Blair,  who  

                                                                                                                            



discharged him in January 2015 because he had completed his treatment goals.  

                                                                                                                         



          B.        Proceedings  



                    1.        First termination trial  

                                                            



                    Dana was adjudicated a child in need of aid in December 2011.   OCS  

                                                                                                                           



petitioned to terminate Jude's parental rights in August 2012 on the grounds that Jude  

                                                                         



                                                               -4-                                                        7168
  


----------------------- Page 5-----------------------

would "not be released until 2014, and it is at best unclear if he will have resolved his                                       



                                                                                                                                           4  

history of sexual behavior against underage female relatives by then."                                                                        



                                                                                                                                                                      

                          After hearing testimony in April 2014, the superior court found five of the  



                                                                                                                                                                       

six  elements  required  for  termination:  (1)  Dana  was  a  child  in  need  of  aid  due  to  



                                                                                                                                                                 

concerns  about  Jude's  sexual  history;  (2)  Jude's  troubling  conduct  had  not  been  



                                                                                                                                                             

remedied; (3) OCS had made timely and reasonable efforts to provide family support  



                                                                                                                                                                    

services; (4) active efforts had been made to reunify the family; and (5) termination was  



                                               5  

                                                                                                                                                                        

in Dana's best interests.                         But the court could not find beyond a reasonable doubt one of  



                                                                                                                                                                        

the elements required for termination:  that returning Dana to Jude's care was likely to  



                                                                                                       6  

                                                                                                                                                                    

result in serious emotional or physical damage to her.                                                    Without "[an] expert witness who  



                                                                                                      

had performed a specific diagnostic assessment of the risk posed by [Jude]," the court  



                                                                                                                                                             

had "[a] reasonable doubt about [Jude]'s capacity to change," which precluded a finding  



                                                                                      

of likely harm.  The court therefore denied termination.  



                                                                                               

                          2.             Second termination trial  



                                                                                                                                                                  

                          Jude and OCS could not agree on an appropriate permanency plan once  



                                                                                                                                                                         

Dana moved out of state to live with the Winsomes, and the superior court scheduled a  



                                                                                                                                                                     

second termination trial.  At OCS's request the superior court agreed to consider the  



                                                                                                                                                            

alternative of a long-termguardianship with the Winsomes. It heard evidence in October  



                                            

and November 2015.  



             4            OCS also requested termination of Marya's rights. She failed to appear for                                                                  



trial, and the court terminated her parental rights in June 2014.                                                             



             5            See AS 47.10.088(a) - (c); 25 U.S.C.  1912(d) (2012); CINA Rule 18(c).  

                                                                                                                                                                



             6            See 25 U.S.C.  1912(f); CINA Rule 18(c)(4).  

                                                                                                     



                                                                                   -5-                                                                           7168
  


----------------------- Page 6-----------------------

                    Dr. Richard Lazur, who had been retained by OCS to assess Jude, testified  

                                                                                                                        



that Jude's risk of reoffense within a year was 3.2% and within five years was 5.9%.  

                                                                                                                                     



The superior court found that both Dr. Lazur and Dr. Blair, Jude's treating therapist,  

                                                                                                                      



believed that Jude continued to pose "a small but significant risk" to Dana. Both experts  

                                                                                                                         



"recommended a detailed transition program with safeguards to protect [Dana]" and that  

                                                                                                                              



"any reintroduction should occur over a long period of time in a safe, therapeutically- 

                                                                                                    



controlled environment."  

                 



                    The  court  again  concluded  that  OCS  had  proven  all  but  one  element  

                                                                                                                       



required for termination; it found that the likelihood of harm from Dana's return to  

                                                                                                                                



Jude's care was proven by clear and convincing evidence but not beyond a reasonable  

                                                                                                                    



doubt.  The court found that "[a]ccording to Dr. Lazur, [Jude] has made outstanding  

                                                                                                                  



progress toward recovery" and "the evidence [still] fails to show beyond a reasonable  

                                                                                                                   



doubt  that  [Jude]'s  conduct  is  unlikely  to  change."  The  court  therefore  denied  

                                                                                                                         



termination for a second time.  

                                       



                    3.        Guardianship order  

                                                       



                    Having denied termination, the court turned to OCS's alternative request  

                                                                                                        



that Dana be placed in a long-term guardianship with the Winsomes.  The court first  

                                                                                                                              



determined that it was authorized to consider guardianship because Jude's parental rights  

                                                                                                                            



had been suspended both by Dana's status as a child in need of aid and by the terms of  

                                                                                                                                 



Jude's probation, which prohibited unsupervised contact with Dana.  The court made  

                                                                                                                           



three findings required to support a guardianship order: (1) that active efforts were made  

                                                                                                                            



and were unsuccessful; (2) that "leaving the child in the parent's custody would likely  

                                                                                                                           



cause 'serious emotional or physical damage' "; and (3) "that appointment of a guardian  

                                                                                                                      



would be in the child's best interest."  The court appointed the Winsomes as Dana's  

                                                                                                                         



                                                               -6-                                                         7168
  


----------------------- Page 7-----------------------

guardians until she turns 18, giving them discretion over future contact between Dana   



and Jude, "guided by the therapeutic recommendations for [Dana]."                                                                                                         



                                 Jude appeals from this order.                                               The guardian ad litem sides with OCS in                                                              



supporting the order.                                 



III.             STANDARDS OF REVIEW                               



                                 "In child in need of aid cases, 'we review the trial court's factual findings                                                                                    

for clear error and its legal determinations de novo.' "                                                                              7  "We will find clear error only  



                                                                                                                                                                                                                

when a review of the entire record leaves us 'with a definite and firm conviction that the  



                                                                                            8  

                                                                                                                                                                                                              

                                                                                                 "[I]t is the function of the trial court, not of this  

superior court has made a mistake.' " 



                                                                                                                                                                                                 9  

                                                                                                                                                                                                       Thus,  

court,  to  judge  witnesses'  credibility  and  to  weigh  conflicting  evidence." 



                                                                                                                                                                                                     

"[c]onflicting evidence is generally not sufficient to overturn  a  trial court's factual  



                                                                                                                                                                                                               

findings, and we will not reweigh evidence when the record provides clear support for  



                                                      10  

                                   

a trial court's ruling." 



                 7               Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                     



Servs., 322 P.3d 842, 849 (Alaska 2014) (quoting                                                                            Chloe O. v. State, Dep't of Health &                                                  

Soc. Servs., Office of Children's Servs.                                                         , 309 P.3d 850, 855 (Alaska 2013)).                                    



                 8               David S. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                                                       

270 P.3d 767, 774 (Alaska 2012) (quoting S.H. v. State, Dep't of Health &Social Servs.,  

                                                                                                                                                                                                       

Div. of Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002)).  

                                                                                                                                                     



                 9                Tessa M. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                                           

Servs., 182 P.3d 1110, 1114 (Alaska 2008) (quoting In re Adoption of A.F.M., 15 P.3d  

                                                                                                                                                                                                            

258, 262 (Alaska 2001)).  

                                             



                 10              Emma D., 322 P.3d at 849 (quoting Chloe O., 309 P.3d at 856).  

                                                                                                                                                                                   



                                                                                                        -7-                                                                                               7168
  


----------------------- Page 8-----------------------

                        "Whether a trial court's findings are consistent with the child in need of                                                     



                                                                                                                                                        11  

aid"   or   other   applicable   statutes   "is   a   question   of   law   that   we   review   de   novo."                                                



                                                                                         12  

                                                                                                                                                     

"Statutory interpretation is also a question of law,"                                        for which we adopt "the rule of law  



                                                                                                                    13  

                                                                                                      

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



                                                                                                                                                      

                        "Whether  the  state  complied  with  the  'active  efforts'  requirement  of  



                                                                                   14  

                                                                                                                                                 

[ICWA] is a mixed question of law and fact."                                            "Whether a child would likely suffer  



                                                                                                                                                       

serious physical or emotional harm if returned to a parent's custody is a question of  



          15  

fact."                                                                                                                                              

                We  review  for  abuse  of  discretion  the  superior  court's  determination  that  



                                                                                                                                            

guardianship is in the child's best interests, though we review any underlying findings  



                                          16  

                                                                                                                                                      

of  fact  for  clear  error.                    "In  appointing  a  guardian,  the  superior  court  'abuses  its  



                                                                                                                                              

discretion if it considers improper factors, fails to consider statutorily mandated factors,  



                                                                                   17  

                                                                                  

or assigns too much weight to some factors.' " 



            11          Tessa M., 182 P.3d at 1114 (citing  Brynna B. v. State, Dep't of Health &   



Soc. Servs., Div. of Family & Youth Servs.                                  , 88 P.3d 527, 529 (Alaska 2004)).               



            12          Madonna v. Tamarack Air, Ltd., 298 P.3d 875, 878 (Alaska 2013) (citing  

                                                                                                                                                

Curran v. Progressive Nw. Ins. Co., 29 P.3d 829, 831 (Alaska 2001)).  

                                                                                                                 



            13          Tessa M., 182 P.3d at 1114 (quoting Brynna B., 88 P.3d at 529).  

                                                                                                                                  



            14          Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                        

Servs., 175 P.3d 1263, 1267 (Alaska 2008) (citing T.F. v. State, Dep't of Health & Soc.  

                                                                                                                                                    

Servs., 26 P.3d 1089, 1092 (Alaska 2001)).  

                                                                 



            15          Chloe O., 309 P.3d at 856 (citing Pravat P. v. State, Dep't of Health &Soc.  

                                                                                                                                                    

Servs., Office of Children's Servs., 249 P.3d 264, 270 (Alaska 2011)).  

                                                                                                                 



            16          In re M.K., 278 P.3d 876, 880-81 (Alaska 2012).  

                                                                                                                 



            17          Id., 278 P.3d at 881 (quoting Farmer v. Farmer, 230 P.3d 689, 693 (Alaska  

                                                                                                                                              

2010)).  



                                                                           -8-                                                                    7168
  


----------------------- Page 9-----------------------

IV.	      DISCUSSION  



                                                                                                                                

                    Jude's claims on appeal focus on the long-term guardianship order and fall  



                                                                                                                       

into three main categories:  (A) that the order exceeded the superior court's statutory  



                                                                                                                                   

authority, (B) that the court applied the wrong standard of proof for its finding of a  



                                                                                                                                 

likelihood of harm, and (C) that the evidence does not support the court's findings.  



                                                                                                              

          A.	       The Superior Court Was Authorized To Establish A Guardianship  

                                       

                    Under AS 13.26.045.  



                                                                                                                                  

                    Alaska  Statute  13.26.045  authorizes  the  superior  court  to  "appoint  a  



                                                                                                    

guardian for an unmarried minor if all parental rights of custody have been terminated  



                                                                                                                           

or suspended by circumstances or prior court order."  (Emphasis added.)  Jude argues  



                                                                                                                                

that the court lacked authority to establish a guardianship under this statute because his  



                                                                                                                          

rights had not been terminated or suspended.   He specifically challenges the court's  



                                                                                                        18  

                                                                                                                                 

reliance on Dana's CINA status as having "suspended" his rights,                                            arguing that he  



                                                                                                                      19  

                                                                                                                           

retained "residual rights" of parenting despite OCS's physical custody ofDana.                                           Alaska  



                                                                       20  

                                                                                                                                 

Statute 13.26.045 does not define "suspended"                             and the parties dispute its meaning; we  



                                                                            21  

                                                                    

consider the meaning of a statutory term de novo. 



          18        Jude   does   not   directly   challenge   the   superior   court's   reliance   on   his  



probation  conditions  as  a  separate  suspension  of  his  parental  rights.   Because  we  agree  

with   the   superior   court   that   Jude's  custodial   rights   were   suspended   by   the   CINA  

adjudication,  we  need  not  address  the  effect  of  the  probation  conditions.  



          19        AS 47.10.084(c).  

                           



          20        See AS  13.26.005 (definitions).  

                                                  



          21        Doe v. State,  189 P.3d 999,  1002-03 (Alaska 2008) ("We give de novo  

                                                                                                                             

review to questions of law, including issues of statutory interpretation." (citing Doe v.  

                                                                                                                           

State, Dep't of Pub. Safety, 92 P.3d 398, 402 (Alaska 2004))).  

                                                                                   



                                                                -9-	                                                        7168
  


----------------------- Page 10-----------------------

                              It is true, as Jude contends, that the parent of a child in OCS custody retains                                                                      



"residual rights" unless and until all parental rights are terminated; these residual rights                                                                                         



include   "the   right   and   responsibility   of   reasonable   visitation,   consent   to   adoption,  



consent to marriage, consent to military enlistment, [and] consent to major medical                                                                                            

                         22      But rights of custody are not included in those residual rights.23                                                                                     The  

treatment."                                                                                                                                                                            



question, therefore, is whether Jude's custodial rights were suspended while Dana was  

                                                                                                                                                                                         



in OCS's custody.  

                                           



                               "When a child is committed under AS 47.10.080(c)(1) to the department,  

                                                                                                                                                                       



. . . a relationship of legal custody exists" between OCS and the child, imposing on OCS  

                                                                                                                                                                                       

the daily custodial responsibilities that would otherwise be the parent's.24   In contrast, as  

                                                                                                                                                                                             



the superior court explained, "[Jude] has neither the right of physical custody nor any  

                                                                                                                                                                                



day-to-day right of  legal  custody.   He cannot take [Dana] to the park, make her a  

                                                                                                                                                                                              



sandwich, or tuck her in at night."  To "suspend" rights means to temporarily prevent  

                                                                                                                                                                                

                                25     Because Jude was prevented from exercising his "parental rights of  

their exercise.                                                                                                                                                                             

            



               22             AS 47.10.084(c).   



               23             We do not address thecircumstancein which thetrial                                                                 court returns the child               



to the parent's custody in an ongoing CINA proceeding.                                                                          See  AS 47.10.080(c)(2).                                  



               24             AS 47.10.084(a) ("[The relationship of legal custody] imposes on [OCS]  

                                                                                                                                                                                   

the responsibility of physical care and control of the child, the determination of where  

                                                                                                                                                                                         

and with whom the child shall live, the right and duty to protect, nurture, train, and  

                                                                                                                                                                          

discipline the child, [and] the duty of providing the child with food, shelter, education,  

                                             

and medical care. . . .").  



               25             "Suspend" means " [t]o interrupt; postpone; defer" or "[t]o temporarily  

                                                                                                                                                                       

keep (a person) from performing a function . . . or exercising a right or privilege."  

                                                                                                                                                                         

Suspend, BLACK 'S  LAW  DICTIONARY  (10th ed. 2014).                                                      

                      



                                                                                            -10-                                                                                      7168
  


----------------------- Page 11-----------------------

custody"   once   OCS   took   custody   of   Dana,   his   parental   "rights   of   custody"   were  

suspended as that term is used in AS 13.26.045.                             26  



                     Jude argues that "[t]he logical extension" of this holding is that any child  

                                                                                                                                   



custody order granting "one parent sole legal and physical custody" suspends the non- 

                                                                                                                                   



custodial parent's rights.  But the analogy to private child custody disputes is inapt, as  

                              



                                                                                                                   27  

demonstrated by the Arizona case on which Jude relies, Morales v. Glenn .                                              The parents  

                                                                                                                               



in  Morales  had  divorced,  and  the  father  was  awarded  sole  custody  of  two  minor  

                                                                                                                                

children.28  After the father died the superior court ordered the children returned to the  

                                                                                                                                      



mother,  but  a  probate  court  simultaneously  entertained  a  petition  for  guardianship  

                                                                                                                     



brought by the paternal grandparents, who argued that the mother's custodial rights had  

                                                                                                                                     

been terminated by the award of sole custody to the father.29                                         The Arizona Supreme  

                                                                                                                            

                                                                                                                         30  It noted  

Court held that the grandparents' guardianship petition should be dismissed.                                                      

                                                                                                          



that the original custody decree "was silent as to the mother's fitness to have custody of  

                                                                                                                                       



the children," that she had been granted reasonable rights of visitation, and that she  

                                                                                                                                     



"regained all rights of custody . . . at the time of the death of the father . . . and actual  

                                                                                                                                 

custody by reason of the order of the [superior] court."31  The court expressly rejected  

                                                                              



           26        See  A.H.  v.  State,  779  P.2d  1229,  1232  (Alaska  1989)  ("[T]he  designation  



of   the   minors   as   children  in  need  of   aid   acted   to   cut   off   the   father's   sole   legal  

custody  .  .  .  .").  



           27        560 P.2d 1234 (Ariz. 1977).  

                                                         



           28        Id. at 1236.  

                               



           29        Id.  



           30        Id. at 1238.  

                               



           31        Id. at 1236-37.  

                               



                                                                  -11-                                                            7168
  


----------------------- Page 12-----------------------

the idea that, absent express findings on the issue,                                                        an award of custody to one parent                           

created a presumption that the other parent was unfit to have custody.                                                                            32  



                            The opposite is true in the case of a child in need of aid.  OCS has custody  

                                                                                                                                                                     



only because of a judicial determination that the parent has committed conduct or created  

                                                                                                                                                                       

conditions that put the child's welfare at risk.33  

                                                                                                     



                            Jude  also  finds  support  for  his  argument  in  a  regulation,  7  Alaska  

                                                                                                                                                                     



Administrative Code (AAC) 56.370(b), which states in part that an agency may not place  

                                                                                                                                                                           



a child in a guardianship without having on hand, among other things, "evidence that . . .  

                                                                                                                                                                                       



parental rights have been terminated or suspended by the court." Jude argues that every  

                                                                                                                                                                          



case to which subsection .370(b) applies involves a child that "has been, like Dana,  

                                                                                                                                                                         



adjudicated to be a child in need of aid," so the regulatory requirement is superfluous if  

                                                                                                                                                                                  



a CINA adjudication necessarily suspends parental rights.  But as OCS points out, the  

                                                                                                                                                                               

provision applies to cases other than CINA cases and to agencies other than OCS,34  and  

                                                                                                                                                                              



it  simply  identifies  the  authorization  paperwork  necessary  for  any  such  agency  to  

                                                                                                                                                                                



proceed  with  a  guardianship.                                     The  regulation  does  not  purport  to  supplement  the  

                                                                                                                                                   

guardianship statutes by requiring an additional finding of termination or suspension.35  

                                                                                                                                                                                       



              32            Id.  (citing   Ward v. Ward                         , 353 P.2d 895, 901 (Ariz. 1960)).                      



              33            See  AS 47.10.011 (defining children in need of aid).                                                



              34            Under 7 AAC 56.010(a) (2015), the provisions apply to licensed "child                                                                       



placement agencies," including, for example, programs for runaway minors operated by                                                                                             

municipalities or corporations.  See AS 47.10.310.  

                                                                                    



              35            We  also  reject  Jude's  argument  that  the  phrase  "adoption  or  legal  

                                                                                                                                                                          

guardianship" in AS 47.10.080(l)(2)(B), addressing permanency plans, means that the  

                                                                                                                                                                               

two options are "aligned" such that OCS can seek neither one without first petitioning  

                                                                                                                                                               

for termination.  Such a reading is not required by the statutory language, and it directly  

                                                                                                                                                                     

conflicts with the express direction of AS 13.26.045 that the appointment of a guardian  

                                                                                                                                                                   

                                                                                                                                                         (continued...)  



                                                                                      -12-                                                                                 7168
  


----------------------- Page 13-----------------------

                               In sum, because Jude's custodial rights had been suspended, the superior                     



court did not err in concluding that it had the authority under AS 13.26.045 to appoint                                                                                          



                                                                        36  

a long-term guardian for Dana.                                                 



                B.	            The Guardianship Was Not A De Facto Termination That Triggered  

                                                                                                                                                                                

                               ICWA's  Requirement  That  The  Likelihood  Of  Harm  Be  Proven  

                                                                                                                                                                                      

                               Beyond A Reasonable Doubt.  

                                                                                       



                               Jude argues that even if the guardianship was statutorily authorized, it was  

                                                                                                                                                                                               



a de facto termination of parental rights for which ICWA requires a higher standard of  

                                                                                                                                                                                                    



proof. ICWA prohibits termination absent proof "beyond a reasonable doubt, including  

                                                                                                                                                                                   



testimony of qualified expert witnesses, that the continued custody of the child by the  

                                                                                                                                                                                                  

parent . . . is likely to result in serious emotional or physical damage to the child."37  

                                                                                                                                                                                                           



Here, the superior court found a likelihood of harm only by the lesser standard of clear  

                                                                                                                                                                                              



and convincing evidence, which is why it refused to terminate Jude's parental rights and  

                                                                                                                                                                                                 



ordered a long-term guardianship instead.  

                                                                                                    



                               ICWA does not separately address guardianships but it does define four  

                                                                                                                                                                                               



types of "child custody proceeding[s]":   (1) foster care placement, (2) termination,  

                                                                                                                                                                            



                35(...continued)  



                                                                                                                                                              

may follow either termination or suspension of a parent's custodial rights.  



                36  

                                                                                                                                                                                                  

                               The State argues that the guardianship order in this case was authorized not  

                                                                                                                                                                                                           

only by AS 13.26.045 but also by AS 47.10.110, which addresses the appointment of a  

guardian "in thecourse                               of a [CINA] proceeding." Wediscussed                                                        therelationship                     between  

                                                                                                                                                                                                    

these two laws in Terry S. v. State, Department of Health & Social Services, Office of  

                                                                                                                                                                                 

Children's Services, 168 P.3d 489, 495 (Alaska 2007).  More recently the legislature  

enacted AS 47.10.111, which addresses petitions for adoption or legal guardianship of                                                                                                               

children in need of aid and will govern the course of such proceedings in the future.                                                                                                                      

Ch. 6,  9, SSSLA 2016.                      



                37             25 U.S.C.  1912(f).  

                                                           



                                                                                                -13-	                                                                                        7168
  


----------------------- Page 14-----------------------

                                                                                                          38  

(3) preadoptive placement, and (4) adoptive placement.                                                         Included in the definition of     



"foster care placement" is "any action removing an Indian child from its parent . . . for                                                                      



temporary placement in . . . the home of a guardian . . . where the parent . . . cannot have                                                                 

the child returned upon demand, but where parental rights have not been terminated."                                                                              39  



The Winsomes' guardianship of Dana meets this definition: Dana is being kept from her  

                                                                                                                                                                

father's home;40  she will be placed temporarily41  in the home of a guardian; Jude cannot  

                                                                                                                                                         

have her returned upon demand; and Jude's parental rights have not been terminated.42  

                                                                                                                                                                        



                          In support of his argument that the guardianship effectively terminated his  

                                                                                                                                                                 

                                                                                                                      43    In that case the State  

parental rights, Jude points to our decision in D.H. v. State.  

                                                                                                                                                            

allowed three children in need of aid to move to Alabama with their foster family.44   We  

                                                                                                                                                                



held that "[a] termination of visitation rights exists not only where the state formally  

                                                                                                                                                     



             38           25  U.S.C.     1903(1).   



             39           25  U.S.C.     1903(1)(i).  



             40          See  CINA  Rule 10.1(b) (requiring compliance with  ICWA  where  a  court  



"is  authorizing  an  Indian  child's  removal  .  .  .  or  continuing  a  previous  order  authorizing  

removal" (emphasis added)).  

                                        



             41          Although the guardianship is long-term, it is not permanent; it can be  

                                              

                                                                                                                                                                 

terminated by court order.  See AS 13.26.085.  

                                                                    



             42          See Terry S. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                 

Servs., 168 P.3d 489, 495 (Alaska 2007) (observing that under ICWA "the appointment  

                                                                                                                                              

of  a  guardian  constitutes  a  'foster  care  placement'  ").                                                   This  interpretation  is  also  

                                                                                                                                                             

consistent with the commentary to the newICWA regulations. Indian Child Welfare Act  

                                                                                                                                                               

Proceedings, 81 Fed. Reg. 38,778, 38,798(June14, 2016) ("Where a guardianship meets  

                                                                                                                                                           

[the foster care placement] criteria, it is subject to applicable ICWA requirements for  

                                                                                                                                                                

child-custody proceedings.").  

                                                           



             43           723 P.2d 1274 (Alaska 1986).  

                                                                       



             44          Id. at 1275.  

                                                 



                                                                               -14-                                                                         7168
  


----------------------- Page 15-----------------------

obtains a termination order but also where the state's decision as a practical matter                                                       



                                                                                                                                    45  

precludes the parent from exercising his or her right of reasonable visitation."                                                        Because  



                                                                                                                                                 

the father was "unemployed and virtually penniless" and "lack[ed] the funds to call  



                                                                                                                                               

regularly," we held that the out-of-state foster care arrangement "constitute[d] a de facto  

                                                                                   46    Jude  argues  that if the foster care  

                                                                                                                                               

termination of [the father's] visitation rights." 



placement in D.H. qualified as a de facto termination, then "surely [the] more permanent  

                                                                                                                                     



and formal break of parental rights . . . in this case" by the guardianship order must do  

                                                                                                                                                   



so too.  

               



                       But the de facto termination in D.H. was of only one parental right, albeit  

                                                                                                                                              



an important one: the right of reasonable visitation. Whether the out-of-state placement  

                                                                                                                                      



constituted a de facto termination of all the father's parental rights was not at issue.  In  

                                                                                                                                                   



another case, Nelson v. Jones, we declined to find a de facto termination of all parental  

                                                                                                                                         



rights even where the superior court denied a father any visitation until he admitted that  

                                                                                                                                                 

                                                                               47    We concluded that "the trial court's  

he had sexually abused one of his children.                                                                                               

                                                                



restriction on visitation [was] not, in effect, a termination of [the father]'s parental  

                                                                                                                                         

rights."48  

                  



                       Jude also asserts that the guardianship order "ends OCS's custody over  

                                                                                                                                               



Dana" and "changes the legal standard" by which he can regain custody, because under  

                                                                                                                                             

AS 13.26.085,49   in order to end the guardianship, he must now carry the burden of  

                                                                                                                                                   



            45         Id.  at 1277.         



            46  

                                                   

                       Id. at 1276-77.  



            47  

                                                                              

                       944 P.2d 476, 479-80 (Alaska 1997).  



            48  

                                  

                       Id. at 480.  



            49  

                                                                                                                                          

                       AS 13.26.085 was renumbered in 2016 as AS 13.26.186; its text remains  

                                                                                                                               (continued...)  



                                                                        -15-                                                                  7168
  


----------------------- Page 16-----------------------

proving   "that   removing   Dana   from   the   Winsomes'   care   would   be   in   Dana's   best  



interests."   But the fact that the guardianship modified Jude's legal rights is not enough                                                                   



to make it a "termination" under federal law.                                                ICWA recognizes that any "foster care                                  



placement" modifies parental rights, in that "the parent . . . cannot have the child returned                                                               

                               50   But as OCS points out, if Jude petitions the court for the guardians'  

upon demand."                                                                                                                                   



removal, the outcome could be "the return of Dana to Jude - something that would not  

                                                                                                                                                                      

be possible if Jude's parental rights were terminated and Dana were adopted."51  

                                                                                                                                         



                           Because guardianship is a foster care placement under ICWA, the superior  

                                                                                                                                                             



court was required to support the guardianship order "by clear and convincing evidence  

                                                                                                                                                           



that [the father]'s continued  custody  of his  children was likely  to result in  serious  

                                                                                                                                                              

emotional or physical damage to them."52  The court did not err by applying this standard  

                                                                                                                                                            



when it ordered the guardianship for Dana.  

                                                                           



             49(...continued)  



        

the same.  



             50            25 U.S.C.  1903(1)(i);                        see also Dep't of Human Servs. v. J.M.                                        , 338 P.3d     



 191, 202 (Or. App. 2014) (holding that a change in a child's permanency plan did not  

                                                                                                         

qualify   as   a   foster   care   placement   under   ICWA   because   it   "did   not   involve   the  

 'significant shift in legal rights' that occurs when a guardianship is established").                                                                              



             51            See  AS 25.23.130 (providing that an adoption decree will "relieve the  

                                                                                                                                                                      

natural parents of the adopted person of all parental rights and responsibilities, and . . .  

                                                                                                                                                                          

terminate all legal relationships between the adopted person and the natural parents . . .  

                                                                                                                                                                           

so  that  the  adopted  person  thereafter  is  a  stranger  to  the  former  relatives  for  all  

                                                                                                                                                                       

purposes");  In  re  K.L.J.,  813  P.2d  276,  279  n.2  (Alaska  1991)  ("The  effect  of  an  

                                                                                                                                                                       

adoption is to permanently terminate the legal relationship of parent and child, except  

                                                                                                                                                                

when the natural parent is the spouse of the adopting parent." (quoting Delgado v.  

                                                                                                                                                                         

Fawcett, 515 P.2d 710, 711 (Alaska 1973))).  

                                                                          



             52            Terry S. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                

 168 P.3d 489, 496 (Alaska 2007); 25 U.S.C.  1912(e) (2012).  

                                                                                                               



                                                                                  -16-                                                                            7168
  


----------------------- Page 17-----------------------

                   C.	               The Superior Court Did Not Err In Its Findings Of Active Efforts, But                                                                                                                          

                                     Its Findings As To Whether Those Efforts Succeeded And Whether                                                                                                                

                                     Dana Faces Harm If Returned To Jude's Custody Lack The Required                                                                                                               

                                     Expert Support.   



                                     The superior court was required to make three factual findings to support                                                                                                           



the guardianship:                                 (1) by clear and convincing evidence that "active efforts have been                                                                                                            



made to provide remedial services and rehabilitative programs designed to prevent the                                                                                                                                                 



                                                                                                                                                                                                                       53  

breakup of the Indian family and that these efforts have proved unsuccessful";                                                                                                                                                         

                                                                                                                                                                                                                             (2) by  



                                                                                                                                                                                                                                 

clear and convincing evidence, supported by expert testimony, that "custody of the child  



                                                                                                                                                                                                                       

by the parent or Indian custodian is likely to result in serious emotional or physical  



                                                          54  

                                                                                                                                                                                                            

damage to the child";                                           and (3) by a preponderance of the evidence that the appointment  



                                                                                                                             55  

                                                                                                                                                                                                                                 

of a guardian is in the child's best interests.                                                                                       Jude argues that the court erred both  



                                                                                                                                                                                                                                   

because the evidence does not show that ICWA's requirement of "active efforts" was  



                                                                                                                                                                                                                                      

satisfied and because the court's "substantial harm" and "best interests" findings are not  



                                                                                                                        

supported by the record.  We agree in part.  



                  53                 25 U.S.C.  1912(d);                                      cf.  CINA Rule 81(c)(2)(B) (establishing a clear and                                                                                 



convincing standard for active efforts in termination proceedings).                                                                               



                  54	                25 U.S.C.  1912(e).  

                                                                     



                  55                 In support of this third requirement the superior court cited C.W. v. State,  

                                                                                                                                                                                                                               

23  P.3d  52,  57  (Alaska  2001),  which  relied  on  the  CINA  statutes'  guardianship  

                                                                                                                                                                                                         

provision, AS 47.10.110.  A best interests finding is also required by AS 13.26.147(b)  

                                                                                                                                                                                       

(formerly AS 13.26.060(b)).  We note that AS 13.26.147(b) requires other findings as  

                                                                                                                                                                                                                

well, including that venue is proper, the person seeking appointment as guardian is  

                                                                                                                                                                                                                                         

qualified to act as one, and the required notices were given.  Jude does not allege any  

                                                                                                                                                                                                                                    

error related to these findings.  

                                                                                     



                                                                                                                  -17-	                                                                                                         7168
  


----------------------- Page 18-----------------------

                             1.	           The superior court did not err in finding active efforts, but its                                                                         

                                           finding that they were unsuccessful requires reconsideration on                                                                           

                                           remand.  



                             Under ICWA, "[a]ny party seeking to effect a foster care placement of, or                                                                                



termination of parental rights to, an Indian child . . . shall satisfy the court that active                                                                                 



efforts   have   been   made   to   provide   remedial   services   and   rehabilitative   programs  



designed to prevent the breakup of the Indian family and that these efforts have proved                                                                                    



                               56                                                                                                                                                      57  

unsuccessful."                                                                                                                                                                              

                                     "The determination of active efforts is done on a case-by-case basis." 



                                                                                                                                                                          

"Although 'no pat formula exists for distinguishing between active and passive efforts,'  



                                               58  

                                                                                                                                                                                        

distinctions do exist."                              "[A]ctive efforts require taking a parent through the steps of a  



                                                                                                                                                                                   

plan and helping the parent develop the resources to succeed; drawing up a case plan and  



                                                                                                                         59  

                                                                                                                                                                              

leaving the client to satisfy it are merely passive efforts."                                                                  "Whether OCS made active  



                                                                                                                                          

efforts to provide remedial and rehabilitative services designed to prevent the breakup  



                                                                                                                           60  

                                                                                                                

of the Indian family is a mixed question of fact and law." 



                                                                                                                                                                    

                             Jude argues onappeal that (a) thesuperior court should not have considered  



                                                                                                                                                                                

efforts provided by entities other than OCS; (b) considering only OCS's efforts, there  



              56             25  U.S.C.     1912(d).  



              57            N.A.  v.  State,  DFYS,   19  P.3d  597,  603  (Alaska  2001).  



              58            Jon  S.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  Servs.,  



212  P.3d  756,  763  (Alaska  2009)  (quoting  A.A.  v.  State,  Dep't  of  Family  & Youth  Servs.,  

982  P.2d  256,  261  (Alaska   1999)).  



              59            Id. (citing A.A. , 982 P.2d at 261).  

                                                                                         



              60             Chloe  O. v. State, Dep't  of Health  & Soc.  Servs.,  Office of Children's  

                                                                                                                                                            

Servs., 309 P.3d 850, 856 (Alaska 2013) (citing Pravat P. v. State, Dep't of Health &  

                                                                                                                                                                                      

Soc. Servs., 249 P.3d 264, 270 (Alaska 2011)).  

                                                                                      



                                                                                         -18-	                                                                                 7168
  


----------------------- Page 19-----------------------

was insufficient evidence that active efforts were made; and (c) active efforts, if made,                                                                                                                                 



were successful in rehabilitating him.                                                   



                                                       a.	              The   superior   court  did   not  err   by  considering efforts   

                                                                        made by entities other than OCS.                                                 



                                    The superior court's active efforts finding relied in part on sex offender                                                                                                     



treatment provided                                     by the federal treatment center                                                           in  Devens.     According   to   Jude,  



however,  ICWA requires that OCS make all qualifying efforts itself; otherwise, he                                                                                                                                                 



argues, OCS will be "incentiviz[ed] . . . to act passively" while letting others carry the                                                                                                                                        



burden of rehabilitation, "which runs counter to ICWA's text and purpose."                                                                                                                                       Because  



Jude's argument asks whether the superior court's findings complied with ICWA, we                                                                                                                                                 

consider it de novo.                                  61  



                                                                                                                                                                                                                             

                                    ICWA requires the party seeking a foster care placement to satisfy the court  



                                                                                                     62 

                                                                                                                                                                                                                               

that "active efforts have been made";                                                                     it does not say who must make the efforts.  We  



                                                                                                                                                                                                                                     

have approved superior courts' consideration of efforts made by outside entities such as  

                                                                                                                                                                                                             63  Wehave  

                                                                                                                                                                                                                              

theAlaskaDepartment of Corrections, parole officers, and therapeutic courts. 



also noted that "the practical circumstances surrounding a parent's incarceration - the  

                                                                                                                                                                                                                                  



difficulty of providing resources to inmates generally, the unavailability of specific  

                                                                                                                                                                                                                    



resources, and the length of incarceration - may have a direct bearing on what active  

                                                                                                                                                                                                           



                  61                 Tessa M. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                                 



Servs.,   182   P.3d   1110,   1114   (Alaska   2008)   ("Whether   a   trial   court's   findings   are  

consistent with the child in need of aid statutes is a question of law that we review de                                                                                                                                           

novo.").  



                  62                25 U.S.C.  1912(d).  

                                                                    



                  63                See, e.g., Claudio P. v. State, Dep't of Health and Soc. Servs., Office of  

                                                                                                                                                                                                                                     

 Children's Servs., 309 P.3d 860, 865 (Alaska 2013) (Department of Corrections efforts);  

                                                                                                                                                                                                                     

Jon S., 212 P.3d at 765 (parole officer efforts); Denny M. v. State, Dep't of Health &Soc.  

                                                                                                                                                                                                                               

Servs., Office of Children's Servs., 365 P.3d 345, 350 (Alaska 2016) (therapeutic courts).  

                                                                                                                                                                                                                                             



                                                                                                                -19-	                                                                                                        7168
  


----------------------- Page 20-----------------------

remedial efforts are possible."                                  64  In  A.M. v. State                   , for example, we upheld the superior   



court's active efforts finding in part because of services provided by the Department of                                                                                               



Corrections, concluding that "[the father]'s enrollment in the DOC programs necessarily                                                                             



                                                                                                                                65  

reduced [OCS]'s role in providing active remedial efforts."                                                                           



                             Although  A.M.  and  other  past  cases  have  considered  efforts  made  by  

                                                                                                                                                                                     

various entities of the State of Alaska,66  the rationale extends to services provided by  

                                                                                                                                                                                      



others that OCS should not be required to duplicate.  It is unrealistic to expect OCS to  



provide rehabilitative sex offender treatment to a federal prisoner, housed out of state,  

                                                                                                           



while that prisoner is already engaged in a federal program of intensive sex offender  

                                                                                                                                                                         

therapy.67              Considering Jude's treatment at Devens in the court's active efforts analysis  

                                                                                                                                                                          



was not error.  

                   



               64            A.A. , 982 P.2d at 261;                           see also Jon S.                  , 212 P.3d at 763 n.26 ("Although                 



incarceration does not absolve the state's active efforts duty, the court may consider the                                                                                           

impact of incarceration on the possibility of active remedial efforts.").                                                          



               65            945 P.2d 296, 306 (Alaska 1997).  

                                                                                         



               66            Jon S., 212 P.3d at 763-64 ("In evaluating whether the state has met its  

                                                                                                                                                                                      

active efforts burden, we look 'to the state's involvement in its entirety.' " (quoting  

                                                                                                                                                                         

Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d  

                                                                                                                                                                                 

 1263, 1268-69 (Alaska 2008))).  

                                                    



               67            See  A.M.,  945  P.2d  at  306  ("Active  intrusion  by  [OCS]  into  DOC's  

                                                                                                                                                                           

therapeutic  programs  would  have  been  inappropriate  and  unreasonable,  if  not  

                                                                                                                                                                                  

impermissible as a matter of law and impossible as a matter of practical reality."). Other  

                                                                                                                                                                               

courts agree with our recognition of the practical difficulties involved in providing  

                                                                                                                                                                      

services to a parent incarcerated in another state.  Loren R. v. Ariz. Dep't of Econ. Sec.,  

                                                                                                                                                                                 

No. 1 CA-JV 12-0158, 2013 WL 119664, at *1 (Ariz. App. Jan. 10, 2013) (citing A.A. ,  

                                                                                                                                                                                 

982 P.2d at 261, among others); In re Cari B., 763 N.E.2d 917, 924 (Ill. App. 2002)  

                                                                                                                                                                              

(citing A.M. , 945 P.2d at 305-06, among others).  

                                                                                          



                                                                                         -20-                                                                                   7168
  


----------------------- Page 21-----------------------

                                           b.	            The   superior   court   did   not   err   by   finding  that active  

                                                          efforts were made.           



                             We review in their entirety the efforts made to prevent the breakup of                                                                                   



Jude's family, focusing first on the period of Jude's incarceration and then on the period                                                                                    



                                               68  

following his release.                                                                                                                                                              

                                                      Although Jude asserts that "the record does not support the  



                                                                                                                                                                             

court's finding regarding active efforts," his argument focuses not on specific factual  



                                                                                                                                                                                       

errors but on whether the efforts satisfy the ICWA standard. This presents a question of  



         69  

law.                                                                                                                                                     

               We conclude that OCS satisfied the active efforts requirement.  



                                                                                         

                                                          i.            Jude's incarceration  



                                                                                                                                                                    

                             Jude was arrested in late 2009 and sentenced in August 2010.  OCS took  



                                                                                                                                                                                 

custody of Dana in April 2011 and still had custody of her when Jude was released from  



                                                                                                                                                                             

the Anchorage halfway house in May 2014.  The evidence supports the superior court's  



                                                                                                          

finding that active efforts were made during this time.  



                                                                                                                                                             

                             As  noted  above,  Jude  received  intensive  sex  offender  rehabilitation  



                                                                                                                                                                

treatment while at Devens, and he also participated in parenting and anger management  



                                                                                                                                                                            

classes.  He was able to send Dana gifts and letters and had regular telephone contact  



                                                                                                                                                                                      

with her while she lived with the Carelawns and the Winsomes. OCS apparently had no  



                                                                                                                                                                                      

role in facilitating these contacts, though it "provided [Mr. Carelawn] guidance" in  



                                                                                                                                                                    

initiating the telephone calls and at one point gave the Carelawns advice as to whether  



                                                                                                                                                                                   

they should continue.  Still, the superior court "assign[ed] significant weight to the fact  



                                                                                                                                                                       

that this telephone contact was consistent and continuing." While Jude had no in-person  



                                                                                                                                                                                

visitation with Dana while at Devens, "[w]e have previously found that telephonic visits  



              68             Jon S.       , 212 P.3d at 763-64 (quoting                                    Maisy W.             , 175 P.3d at 1268-69).         



              69             Tessa M. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                 



Servs., 182 P.3d 1110, 1114 (Alaska 2008).                                       



                                                                                         -21-	                                                                                  7168
  


----------------------- Page 22-----------------------

                                                                                                                                                                                    70  

with an incarcerated parent satisfied                                                             the active efforts requirement."                                                        And we are               



reluctant to say that "active efforts" requires sending a child across the country to visit                                                                                                                     



an incarcerated parent.                                     



                                  Jude emphasizes the minimal efforts his OCS caseworkers made to contact                                                                                                 



him while he was in prison, but the evidence supports a conclusion that this was due at                                                                                                                                

                                                                                                                                                        71      The scope of the active  

least in part to the logistical challenges of his incarceration.                                                                                                                                            

efforts requirement was necessarily narrowed by these "practical realit[ies]."72  OCS's  

                                                                                                                      



involvement during this time was minimal but not dissimilar to what we have found  

                                                                                                                                                                                                            



adequate in the past.   In A.M.  we upheld an active efforts finding where the father  

                                                                                                                                                                                                            



received  sex  offender  treatment  in  a  state  prison  and  the  child  protection  agency  

                                                                                                                                                                                                        



"maintained contact with [the father] while he was in treatment, generally encouraged  

                                                                                                                                                                    

                                                                                                                                                                                                              73      In  

his treatment efforts, and assisted him in arranging visitation with his children."                                                                                                                                  

                                                                                                                                                                                     



Dashiell R. v State, we upheld an active efforts finding where the father received classes  

                                                                                                                                                                                                          



and therapy while incarcerated, "OCS staff communicated with [the father] during his  

                                                                                                                                                                    



incarceration," and "OCS arranged for written exchanges and telephone visits between  

                                                                                                                                                                                                       



                                                                           74  

 [the father] and the children."                                                 Like the parents in A.M. and Dashiell R., Jude received  

                                                                                                                                                                                                      



treatment while incarcerated and had regular contact with his child by telephone and  

                                                                                                                                                                                                                  



                 70               David S. v. State, Dep't of Health &Soc. Servs.                                                                      , 270 P.3d 767, 778 (Alaska                      



2012) (citing                     Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                     

Servs., 222 P.3d 841, 844, 850 (Alaska 2009)).                                                       



                 71               These included the facility's anti-virus software, which interfered with  

                                                                                                                                                                                                                

email communication, and time limits on phone calls.  Jude admitted that "[t]he phone  

                                                                                                                                                                                                            

 system in prison is very hard to deal with."  

                                                                                              



                 72               A.M. , 945 P.2d at 306.  

                                                                                             



                 73               Id.  



                 74               222 P.3d at 850.  

                                                                 



                                                                                                         -22-                                                                                                  7168
  


----------------------- Page 23-----------------------

                                                                                                                               

letter; unlike in those cases, OCS in this case had little involvement in these efforts but  



                                                                                                                               

nonetheless was not required to duplicate them. We conclude that the superior court did  



                                                                                                       

not err when it included these facts in the necessary active efforts.  



                                                                        

                                        ii.       After Jude's release  



                                                                          

                    In the few months between Jude's release in early 2014 and Dana's May  



                                                                                                                     

2014 move out of state, OCS worked on Jude's case plan, referred him to parenting  



                                                                                                                         

classes, and helped him to continue sex offender treatment.  He had supervised contact  



                                                                           

with Dana during family therapy sessions and at OCS.  



                                                                                                                             

                    After Dana's move, OCScaseworkerEryneHughes kept in touch with Jude  



                                                                                                                               

by email and had at least three meetings with him between November 2014 and the  



                                                                                                                               

second termination trial in late 2015.  OCS set up a risk assessment for Jude with Dr.  



                                                                                                                

Lazur to determine whether he could safely gain his daughter's custody.  



                                                                                                                     

                    At the time of the second termination trial Jude was having telephone  



                                                                                                                               

contact with  Dana every  Sunday,  and  OCS was communicating  with Jude and  the  



                                                                                                                     

Winsomes about continuing these contacts.  OCS had not paid for in-person visitation,  



                                                                                                                    

but Dana's therapists were recommending against it at that time.  One of the therapists,  



                                                                                                                     

Lisa Merz, testified that she needed to work with Jude before signing off on in-person  



                                                                                                                                     

visitation, but Jude's refusal to schedule a phone call or visit Merz hindered progress.  



                                                                                                                  

When Jude failed to schedule the call during Merz's business hours, OCS caseworker  



                                                                                                                           

Hughes emailed him in an attempt to ease tensions and "let[] him know that he really  



                                                                                                                         

needs to do what [Dana's] clinician  is asking of him."   By the time of the second  



                                                                                                                            

termination trial Jude still had not scheduled the telephone call, though he had left Merz  



                                                                                                                            

a voicemail.  He told Hughes that he could not afford to miss work or travel out of state;  



                                                                                                                          

Hughes, on the other hand, testified that he could afford it but had told her the trip would  



                                                                                                                           

be a waste of time without a guarantee of seeing his daughter.   The superior court  



                                                                                                             

credited Hughes'stestimonyonthisissuebecause"evasiveness and somedefensiveness"  



                                                              -23-                                                         7168
  


----------------------- Page 24-----------------------

were a "fairly recurrent aspect of [Jude's] testimony."                                                                Jude does not directly challenge                 



this finding of fact.                        



                             We have held consistently that "[t]he active efforts requirement does not                                                                                

                                             75        While  OCS's  efforts  here  may  have  "fall[en]  short  of  

require   perfection."                                                                                                                                                                 

exemplary,"76  we conclude that the superior court did not err in finding that the "active  

                                                                                                                                                                              



efforts" requirement was satisfied.  

                                                        



                                            c.	           The  superior  court's  finding  that active efforts were  

                                                                                                                                                                                  

                                                          unsuccessful requires reconsideration on remand.  

                                                                                                                                                           



                             The superior court found that although Jude has "complied with all of the  

                                                                                                                                                                                       



[OCS] plan requirements," it could not "declare [Jude]'s recovery a success at this time."  

                                                                                                                                                                                               



Jude argues that this is clearly erroneous; he contends that if active efforts were made  

                                                                                                                                                                                 



they succeeded in rehabilitating him, allowing for the reunification of his family.  

                                                                                                                                                                                   



                             ICWA does not define "success" in the active efforts context.  Jude argues  

                                                                                                                                                                               



in effect that efforts succeed when the parent completes each element of a case plan "to  

                                                                                                                                                                                       



satisfaction."                     But  completion  alone  cannot  define  success.                                                              We  have  held  that  

                                                                                                                                                                                    



"[c]ompliance with treatment plans does not guarantee that parental rights will not be  

                                                                                                                                                                                        



terminated because it cannot guarantee that adequate parenting skills will be acquired  

                                                                                                                                                                          

from the treatment regimen."77                                        In V.S.B. we upheld termination of a mother's parental  

                                                                                                                                                                            



               75            Philip J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.                                                                                  ,  



314 P.3d 518, 530 (Alaska 2013) (quoting                                                       Pravat P. v. State, Dep't of Health & Soc.                                           

Servs., Office of Children's Servs.                                        , 249 P.3d 264, 272 (Alaska 2011)).                           



               76            Thomas H. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                      

Servs., 184 P.3d 9, 16 (Alaska 2008); see also Philip J., 314 P.3d at 530 ("[T]he fact that  

                                                                                                                                                                                     

OCS  could  have  done  more  does  not  undermine  the  other  active  efforts  that  OCS  

                                                                                                                                                                                  

made.").  

                     



               77             V.S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  

                                                                                                                                                                                

                                                                                                                                                                (continued...)  



                                                                                          -24-	                                                                                   7168
  


----------------------- Page 25-----------------------

rights even where she was able to "reduce the risk of an episode of Bipolar Disorder                                                                 



down to one mild episode in a ten-year span" and "[she] ha[d] done all that ha[d] been                                                                       



asked of her and there [was] nothing in the record to suggest that [she was] being                                                                         

                                                                                    78    Although OCS had helped the mother  

insincere in her attempts at rehabilitation."                                                                                                           



complete parenting classes and mental health treatment, we upheld the superior court's  

                                                                                                                                                         



determination that "[her] parenting skills ha[d] only marginally improved and [were] not  

                                                                                                                                                                

sufficient to make her an adequate parent."79  

                                                                                       



                         As in non-ICWA cases, the appropriate question here "is whether [the  

                                                                                                                                                              



parent] ha[s] remedied the problems that placed [his] children at risk and gained the  

                                                                                                                                                                

necessary skills so that the children could be safely returned to [the parent's] care."80  

                                                                                                                                                                        



The problems need to be not just addressed but "remedied."  

                                                                                            



                         And a failure to remedy, when combined with a continuing likelihood of  

                                                     

harm to the child, may demonstrate that active efforts did not succeed.81  The superior  

                                              



             77(...continued)  



                                                                                                                                                              

Servs., 45 P.3d 1198, 1208 (Alaska 2002) (citing In re T.W.R. , 887 P.2d 941, 945  

                                                                                                                                                             

(Alaska 1994)); see also Barbara P. v. State, Dep't of Health & Soc. Servs., 234 P.3d  

                                                                                                                                                                

 1245, 1260 (Alaska 2010) ("[C]ompletion of a case plan [in a non-ICWA case] does not  

                                                                                                       

guarantee a finding that [a parent] has remedied [his] conduct.").  



             78           V.S.B., 45 P.3d at 1207.  

                                                             



             79          Id.  



             80          Barbara P., 234 P.3d at 1260; In re J.S., 321 P.3d 103, 110 (Mont. 2014)  

                                                                                                                                                           

(observing that the goal of active efforts in an ICWA case is "to avoid the breakup of  

                                                                                                                                                                  

Indian families whenever possible by providing services designated to remedy problems  

                                                                                                                                                    

which might lead to severance of the parent-child relationship" (quoting In re G.S., 59  

                                                                                                                                                                 

P.3d 1063, 1072 (Mont. 2002))).  

                                                



             81           Thomas H.  v. State, Dep't  of Health  & Soc. Servs.,  Office of Children's  

                                                                                                                                                 

Servs., 184 P.3d 9, 17 (Alaska 2008) (holding that the trial court's "analysis [regarding  

                                                                                                                                                  

                                                                                                                                            (continued...)  



                                                                               -25-                                                                         7168
  


----------------------- Page 26-----------------------

court found this combination of factors here.                                                                    However, as discussed in the section that                                                     



follows,   the   superior   court's  finding   of   a   likelihood   of   harm   rests   in   part   on  



considerations   that   lack   support   in   the   expert   testimony.     Because   the   court   must  



reconsider on remand whether the evidence supports a likelihood of harm, it must also                                                                                                                          



reconsider whether the active efforts in this case were unsuccessful.                                                                   



                                 2.	              One   aspect   of   the superior court's finding that                                                                                 Dana would  

                                                  likely suffer serious emotional or physical damage in Jude's                                                                                        

                                                  custody lacks support in the expert testimony.                                                 



                                 BeforeappointingaguardianunderICWAthesuperior court"was required                                                                                                   



to find by clear and convincing evidence that [Jude]'s continued custody of [Dana] was                                                                                                                         



                                                                                                                                                                   82  

likely to result in serious emotional or physical damage to [her]."                                                                                                                              

                                                                                                                                                                          Whether returning  



                                                                                                                                                                           83  

                                                                                                                                                                                                                 

a child to the parent would likely cause harm is a question of fact,                                                                                                            but whether the  



                                                                                                                                                                             84  

                                                                                                                                                                                                               

findings comport with statutory requirements is a question of law.                                                                                                                   The clear and  



                                                                                                                                                                                                    

convincing  evidence  of  harm  necessary  to  support  a  guardianship  must  include  



                 81(...continued)  



                                                                                                                                                                                                         

harm], coupled with [its] holding . . . that [the father] failed to remedy his conduct within  

                                                                                                                                                                                                                 

a reasonable time, disposes of th[e] argument [that active efforts were successful]"); see  

                                                                                                                                                                                                        

also Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs.,  

                                                                                                                                                                                                               

 102 P.3d 932, 936-37 (Alaska 2004) (affirming a finding of likelihood of harm in part  

                                                                                           

by relying on the parent's failure to remedy).  



                 82              See Terry S. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                                              

Servs., 168 P.3d 489, 496 (Alaska 2007); 25 U.S.C.  1912(e).  

                                                                                                                                       



                 83              Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                                             

Servs., 249 P.3d 264, 270 (Alaska 2011).  

                                                                                       



                 84               C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1217 (Alaska  

                                                                                                                                                                                                     

2001).  



                                                                                                       -26-	                                                                                                7168
  


----------------------- Page 27-----------------------

                                                                                  85  

"testimony of qualified expert witnesses."                                             But ICWA "does not clarify the scope of the                                     



expert testimony required, nor does it require that the expert testimony provide the sole                                                                            

                                                                   86    We have interpreted ICWA to require that "[t]he  

basis for the court's conclusion."                                                                                                                               



expert testimony constitute[] some of the evidence upon which the judge bases this  

                                                                                                                                                                     



finding.  But it does not need to be the sole basis for that finding; it simply must support  

                                                                                                                                                              

it."87  



                          As an alternative to Jude's argument that thefinding of harmrequired proof  

                                                                                                                                                                  



beyond a reasonable doubt (addressed above in Section IV.B), Jude contends that the  

                                                                                                                                                                      



finding was not supported by clear and convincing evidence.  The superior court based  

                                                                                                                                                                 



its finding of harm on three "considerations":  (1) that Jude "still poses a significant risk  

                                                                                                                                                                     



of re-offense"; (2) that "there are good reasons to be cautious" about reunifying Jude  

                                                                                                                                                                   



with Dana given his extensive sexual history with relatives and teens and "the fact that  

                                                                                                                                                                     



[Dana] will be a teenager in six years"; and (3)  Jude's "inability to meet [Dana's]  

                                                                                                                                                          



caregiving needs."  

                                         



                           Jude  first  asserts  that  the  superior  court's  decision  that  he  "poses  a  

                                                                                                                                                                           



significant risk of re-offense" is in stark contrast with the expert testimony, pointing to  



Dr. Lazur's testimony that he is a "poster boy for sex offender treatment" because of his  

                                                                                                                                                                        

desire to  make positive changes in his life.88   Dr. Lazur concluded that the risk Jude will  

                                                                                                                                                                       



             85            25 U.S.C.  1912(e).                      As noted above, the term "foster care placement" in                                                 



the act is defined to include guardianships.                                           See  25 U.S.C.  1903(1)(i).        



             86           Diana P. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                       

Servs., 355 P.3d 541, 547 (Alaska 2015) (first citing 25 U.S.C.  1912; then citing E.A.  

                                                                                                                                                                    

v. State, Div. of Family & Youth Servs., 46 P.3d 986, 992 (Alaska 2002)).  

                                                                                                                                    



             87           Marcia V. v. State, 201 P.3d 496, 508 (Alaska 2009).  

                                                                                                                        



             88            The superior court recognized Dr. Lazur as an expert in the psychological  

                                                                                                                                                 

                                                                                                                                                   (continued...)  



                                                                                   -27-                                                                           7168
  


----------------------- Page 28-----------------------

sexually reoffend within five years was approximately 6%; he called this a "moderate                                                   



                                                                                                                              89  

risk." Dr. Blair placed Jude in the "low moderate" risk category, at 2.8%.                                                                 

                                                                                                                                  The superior  



                                                                                                                                                           

court, however, found Jude'srisk ofreoffenseto be"significant"underthecircumstances.  



                                                                                                                                           

                       Jude takes issue with the term "significant," analogizing that "[i]f a weather  



                                                                                                                                    

forecast calls for a 6 percent chance of rain, one would never say there is a 'significant'  



                                                                                                                                         

chan[c]e of rain." OCS responds that "[a] small risk of rain may not warrant an umbrella,  



                                                                                                                                                           

but a small risk that a child will be sexually abused may be cause for serious concern."  



                                                                                                                                                

We agree that the significance of the risk depends in part on the seriousness of the harm  



                                                                                                                                                       

to be avoided.  And deciding whether a particular risk is significant in the context of a  



                                                                                                                                               

child in need of aid case is for the court, even if that risk has been quantified by an expert  

              90   We cannot say that the superior court clearly erred when it found that Jude  

witness.                                                                                                                                         



posed a "significant" risk of sexual reoffense.  

                                                               



                       We are more concerned with the court's second consideration: that because  

                                                                                                                                            



of Jude's sexual history, the risk of sexual offense encompasses Dana as a possible victim.  

                                                                                                                                                           



Dr.  Lazur  testified  that  the  risk  Jude  would  sexually  offend  with  his  daughter  was  

                                                                                                                                                  



essentially nonexistent.  He testified that "there's no evidence, either from the test data,  

                                                                                                                                                 



the risk assessment, my judgment of looking at him and seeing where he is and seeing  

                                                                                                                                              



            88(...continued)  



                                                                                                                                              

evaluation and treatment of sex offenders and risk assessments of sex offenders.  



            89         The superior court recognized Dr. Blair as an expert in the field of sex  

                                                                                                                                                  

offender treatment.                 



            90         Diana P., 355 P.3d at 546-47 ("The findings of a likelihood of serious  

                                                                                                                                           

emotional or physical damage are findings that must be made by the trial judge, not the  

                                                                                                                                                   

expert witness." (quoting Marcia V., 201 P.3d at 508)).  Though an expert witness such  

                                                                                                                                                

as Dr. Blair or Dr. Lazur is in the best position to estimate the risk of sexual reoffense,  

                                                                                                                                       

it is up to the superior court to determine whether that risk is significant in the context  

                                                                                                                                

of a CINA case.  

                     



                                                                         -28-                                                                  7168
  


----------------------- Page 29-----------------------

what he's doing, that he poses a danger" to Dana.                                                                                                         His opinion was based on Jude's age,                                                                     



"awareness[,]   and   ability   to   control   his   drives"   and   also   on   Jude's   "very   different"  



relationships   with   his   former   sexual  partners   -   whom   he   viewed   as   "people   of  



convenience"   there   to   "serve   his   needs"   -   and   with   his   daughter,   whom   he   was  



motivated to care for as a parent.                                                                     Dr. Blair deferred on this issue to Dr. Lazur.                                                                                               In short,   



the superior court's conclusion that Dana was at risk of sexual abuse by her father finds                                                                                                                                                                       



no support in the expert testimony given at trial.                                                                                                      



                                          The   court's   remaining   concern,   however   -   Jude's   "inability   to   meet  



 [Dana's] caregiving needs" - is well supported by the evidence.  The court found that                                                                                                                                                                              



Jude "is simply not the kind of caregiver [Dana] needs right now."                                                                                                                                            The court referred to                                       



the testimony of Dana's therapist, Merz, who testified that Jude "has displayed a pattern                                                                                                                                                               



of failing to understand [Dana's] past traumas and does not understand the child's fears                                                                                                                                                                        

                                              91   Merz identified these traumas, fears, and anxieties as including Dana's  

and anxieties."                                                                                                                                                                                                                                          



sexual abuse by her cousin, a "sense of abandonment and loss" due to early childhood  

                                                                                                                                                                                                                                                



neglect  and  Jude's  incarceration,  and  abusive  experiences  when  she  lived  with  the  

                                                                                                                                                                                                                                                                    



Carelawns, as well as a general "fear of the unknown."  She testified that Dana "is very  

                                                                                                                                                                                                                                                                 



vulnerable to potential abusive situations in the future."  She testified that Dana needs a  

                                                                                                                                                                                                                                                                            



"secure   attachment"   to   her   caregiver,   to   include   "a   predictable   environment,"  

                                                                                                                                                                                                                               



responsiveness to Dana's "emotional needs," and the practical ability to meet the daily  

                                                                                                                                                                                                                                                                



routines of child care.  Merz testified that Dana had "formed a secure attachment with"  

                                                                                                                                                                                                                                                              



the Winsomes and that Natalia Winsome was particularly "attuned to [Dana's] emotional  

                                                                                                                                                                                                                                                 



needs" and an essential part of the child's ongoing therapy.  

                                                                                                                                                                                          



                                          Thecourtfoundthat Jude, in contrast,"is neither legally nor psychologically  

                                                                                                                                                                                                                               



capable of parenting [Dana]."  It found that despite Jude's positive response to treatment,  

                                                                                                                                                                                                                                                



                     91                  Merz was qualified as an expert in mental health counseling.                                                                                                                                   



                                                                                                                                  -29-                                                                                                                        7168  


----------------------- Page 30-----------------------

he continued to "put[] his own needs and desires first."                                                                                                                                                                                                                                        The court noted the "narcissistic                                                                           



personality traits" observed by both Dr. Blair and Dr. Lazur and that Jude continued to                                                                                                                                                                                                                                         



 exhibit those traits at trial.                                                                                                           Merz's testimony supported these findings; although she had                                                                                                                                                                                                                                                    



had no direct contact with Jude, she reported that his telephone calls gave Dana "a big                                                                                                                                                                                                                                                                                                                                                                    



increase in anxiety and uncertainty" in part because of Jude's failure to recognize that his                                                                                                                                                                                                                                                                                                                                                                 



promises about their future together aggravated Dana's "fear of the unknown."                                                                                                                                                                                                                                                                                                                                                        



                                                                       The superior court also discussed the emotional impact on Dana of any                                                                                                                                                                                                                                                                                                            



transition from the "permanency and stability" of the Winsomes' home to the uncertainty                                                                                                                                                                                                                                                                                                                          



 of reunification with Jude.                                                                                                                 It noted that Jude was currently barred by law "from having                                                                                                                                                                                                                                



unsupervised [contact] with anyone under the age of eighteen"; that both Dr. Lazur and                                                                                                                                                                                                                                                                                                                                                                   



Dr. Blair testified about the necessity of a slow reintroduction, with "a detailed transition                                                                                                                                                                                                                                                                                                                              

                                                                                                                  92 ; and that because of this, Dana would not be able to live with Jude  

plan with safeguards"                                                                                                                                                                                                                                                                                                                                                                                                                                



 even after moving back to Alaska, meaning that "it will be some time before she and  

                                                                                                                                                                                                                                                                                                                                                                                                                                                        



 [Jude] can form a meaningful parent-child relationship."  The court concluded that "any  

                                                                                                                                                                                                                                                                                                                                                                                                                                                   



move from [the Winsomes' home state] to Alaska is likely to be disruptive to [Dana]."  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                            



                                                                       In granting the guardianship, therefore, the court decided that Dana should  

                                                                                                                                                                                                                                                                                                                                                                                                                                         



remain with the Winsomes until Jude's "likelihood of relapse decreases," noting Dr.  

                                                                                                                                                                                                                                                                                                                                                                                                                                                         



                                   92                                  Dr. Lazur's and Dr. Blair's opinions about the necessity of a transition                                                                                                                                                                                                                                                                      



period were not based on a sexual risk that Jude posed to Dana.                                                                                                                                                                                                                                                                               Dr. Lazur's discussion                                             

 of the transition period was based on the general need for a parent and child, long                                                                                                                                                                                                                                                                                                                                                           

 separated, to get to know each other, and Jude's need for time to figure out how to be a                                                                                                                                                                                                                                                                                                                                                                         

parent. Dr.                                                Lazur was asked, "[W]hat I'mgetting                                                                                                                                                                   is that the primary basis for those ideas  

 and recommendations for the transition is not the risk of reoffense, but related to re-                                                                                                                                                                                                                                                                                                                                                                

 familiarization in the parenting . . . issues that need to be worked out," and he answered,                                                                                                                                                                                                                                                                                                                       

"Exactly." As for Dr. Blair, his testimony about a necessary transition period was based                                                                                                                                                                                                                                                                                                                                                  

in part on what he understood to be the conditions of Jude's probation and in part on                                                                                                                                                                                                                                                                                                                                                                     

what he understood to be OCS's typical practice in reunifying families.                                                                                                                                                                                                                                                                                                                    He repeatedly   

deferred to Dr. Lazur as to whether Jude posed a risk of sexual reoffense to Dana.                                                                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                             -30-                                                                                                                                                                                                              7168
  


----------------------- Page 31-----------------------

Lazur's testimony that Jude's statistical risk of reoffending will drop by 50%                                                                                                                                                                                                                      five years   



after his release from prison.                                                                                The court noted that Jude "may be ready to act as [Dana's]                                                                                                                                  



father if he continues to progress."                                                                                                   But it also noted its continuing concern with how                                                                                                                                 



Jude's narcissistic personality traits might impact his "ability to place [Dana's] needs                                                                                                                                                                                                                            



before his own" and his minimalization of some of his past transgressive behavior.                                                                                                                                                                                                                                          



                                                   In sum, we see no clear error in the superior court's conclusions (1) that                                                                                                                                                                                               



Jude's risk of sexual reoffense is "significant"; (2) that Jude is currently unable to meet                                                                                                                                                                                                                             



Dana's needs as her caregiver; and (3) that moving Dana from her secure environment                                                                                                                                                                                                       



with the Winsomes to a transitional setting with her father in Alaska would be disruptive                                                                                                                                                                                                            



and emotionally damaging. But given the expert testimony requirement of ICWA, it was                                                                                                                                                                                                                                    



error to rely on Jude's sexual history and risk of sexual reoffense as posing a particular                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                           93         The court  

danger to Dana; this conclusion is not supported by the expert testimony.                                                                                                                                                                                                                                             



relied on all these factors in combination to find the likelihood of harm.  Because the  

                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                    94  we remand for the superior court to consider  

question of likely harm is one of fact,                                                                                                                                                                                                                                                                  

                                                                                                                                  



whether, consistent with our discussion above, there remains "clear and convincing  

                                                                                                                                                                                                                                                                                              



evidence, including testimony of qualified expert witnesses," that returning Dana to  

                                                                                                                                                                                                                                                                                                                                  



Jude's custody will cause her serious emotional or physical damage.  

                                                                                                                                                                                                                                   



                                                   3.	                      The superior court did not abuse its discretion by finding that  

                                                                                                                                                                                                                                                                                                                          

                                                                            guardianship was in Dana's best interests.  

                                                                                                                                                                                                                 



                                                   To support a guardianship order under AS 13.26.060(b) a court must find  

                                                                                                                                                                                                                                                                                                                           



that  "the  welfare  and  best  interests  of  the  minor  will  be  served  by  the  requested  

                                                                                                                                                                                                                                                                                                    



                         93                        See  25 U.S.C.  1912(e) (requiring"adetermination, supported byclear and                                                                                                                                                                                              



convincing   evidence,   including  testimony   of   qualified   expert   witnesses,   that   the  

continued custody of the child by the parent . . . is likely to result in serious emotional                                                                                                                              

or physical damage to the child").                                                                  



                         94                       Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                                                                                                                                              

Servs., 249 P.3d 264, 270 (Alaska 2011).  

                                                                                                                                   



                                                                                                                                                              -31-	                                                                                                                                                  7168
  


----------------------- Page 32-----------------------

                                                                                                                         

appointment." Jude challenges the court's best interests finding in this case first because  



                                                                                                                               

of the risk of sexual abuse posed by Natalia's son Roland.  The superior court found that  



                                                                                                                                    

"in  spite  of  the  risk  that  [Roland]  will  likely  return  to  the  [Winsome]  house,  .  .  .  



                                                                                                                     

guardianship with the [Winsomes] would adequately protect [Dana] from additional  



                                                     

physical or psychological harm."  



                                                                                                                          

                    The record supports this finding.  A number of witnesses testified that the  



                                                                                                                              

Winsomes responded immediately and appropriately to Dana's report of abuse.   The  



                                                                                                                       

entire family participated in a program called RSafe, which included individual treatment  



                                                                                                                                 

for both Roland and Dana.   Witnesses confirmed that because the reparation goal of  



                                                                                                                                

RSafe "is always victim-centered," any decision about whether Roland returns to the  



                                                                                                            

Winsome home will be based on the therapeutic recommendations for Dana.  



                                                                                                                       

                    The court also heard evidence of the small reoffense rate for child offenders  



generally (because they are driven by different impulses than adults are) and for RSafe  



                                                                                                                                 

graduates in particular.  The court also reasoned that living in a household supervised by  



                                                                                                                           

the adult Winsomes, even if Roland were living there too, would be a more normal family  



                                                                                                                                 

dynamic than returning to Alaska, where a "workable transition plan" had yet to be  



                   

developed.  



                                                                                                                              

                    Finally, Jude relies on testimony that the Winsomes asked Dana to call them  



                                                                                                                             

"Mom" and "Dad" in order to avoid confusing their younger son; according to Jude,  



                                                                                                                                  

"[t]his demonstrated both a desire to replace Jude with Mr. Winsome" and a failure to  



                                                                                                                              

prioritize Dana's needs over this "minor concern" for their son. We understand why Jude  



                                                                                                                                

would find this troubling, but the superior court does not appear to have addressed it, and  



                                                                                                                                      

given the court's other best interests findings it is very unlikely to have made a difference.  



                                                               -32-                                                        7168
  


----------------------- Page 33-----------------------

                                                                                                                                                                       95  

Importantly, the court found that the Winsomes provide Dana a stable environment;                                                                                         in  



contrast, her therapists testified that transitioning her to her father's care, at this stage in                                                                           



his   rehabilitation,   would   be   a   long-term   and   uncertain   process   likely  to  cause   her  



                                 96  

emotional harm.                       



                           We  conclude  that  the  superior  court  did  not  abuse  its  discretion  by  

                                                                                                                                                                         



concluding that guardianship was in Dana's best interests.  

                                                                                                                      



V.            CONCLUSION  



                           The superior court's long-term guardianship order is VACATED. The case  

                                                                                                                                                                       



is REMANDED for reconsideration of whether clear and convincing evidence, including  

                                                                                                                                                             



the testimony of qualified expert witnesses, supports a finding that Dana would likely  

                                                                                                                                                                    



suffer serious emotional or physical damage if placed in Jude's custody  

                                                                                                                                



             95            See  AS 47.05.065(4)(A) - (B) (stating that "the child should be placed in                                                                     



a    safe,    secure,  and    stable    environment"    and    "the    child    should    not    be    moved  

unnecessarily").  



             96            Such  a  move  would  currently  require  two  transitions:                                                            one  from  the  

                                                                                                                                                                      

Winsomes to a temporary placement in Alaska, then, assuming that Jude progresses  

                                                                                                                                                        

appropriately with his rehabilitation, another from that placement to his home.  

                                                                                                                                                 



                                                                                   -33-                                                                            7168
  


----------------------- Page 34-----------------------

 STOWERS, Chief Justice, with whom WINFREE, Justice, joins, concurring in part and                                                                                                                                                                   



dissenting in part.                    



                                                                                                                                                                                                                                                              1  

                                       I disagree with this court's resolution of the likelihood of harm issue.                                                                                                                                                  



Looking at the superior court's findings in their totality, it is clear to me that the superior  

                                                                                                                                                                                                                                        



court was not clearly mistaken in finding that Jude presents a substantial likelihood of  

                                                                                                                                                                                                                                                         



harm to his daughter, given, among other things, the testimony of the daughter's therapist  

                                                                                                                                                                                                                                       



(Merz), who - as this court observes in its opinion at page 29 - "testified that Jude 'has  

                                                                                                                                                                                                                                                    



displayed a pattern of failing to understand [Dana's]pasttraumas and doesnot understand  

                                                                                                                                                                                                                                



the child's fears and anxieties.' "  This court's discussion at page 29-30 buttresses the  

                                                                                                                                                                                                                                                      

 superior court's finding on this issue.2  

                                                                                             



                    1                  "Whether a child would likely suffer serious physical or emotional harm                                                                                                                                



if returned to a parent's custody is a question of fact."                                                                                                   Chloe O. v. State, Dep't of Health                                            

 & Soc. Servs., Office of Children's Servs.                                                                                  , 309 P.3d 850, 855 (Alaska 2013)                                                                           (citing  

Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                                                                                                  , 249 P.3d      

264, 270 (Alaska 2011)).                                                     "In child in need of aid cases, 'we review the trial court's                                                                                               

factual findings for clear error . . . .' "                                                                  Emma D. v. State, Dep't of Health & Soc. Servs.,                                                                             

 Office of Children's Servs.                                                   , 322 P.3d 842, 849 (Alaska 2014) (quoting                                                                                           Chloe O.                  , 309   

P.3d at 856).                          "We will find clear error only when a review of the entire record leaves us                                                                                                                                     

 'with a definite and firm conviction that the [trial court] has made a mistake.' "                                                                                                                                              David S.   

v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                                                                               , 270 P.3d 767, 774   

(Alaska 2012) (citing                                            S.H. v. State, Dep't of Health & Social Servs., Div. of Family &                                                                                                                       

 Youth Servs.                        , 42 P.3d 1119, 1122 (Alaska 2002)).                                                    



                    2                  This court explains at pages 29-30 of the opinion:  "The [superior] court  

                                                                                                                                                                                                                                              

found that Jude . . . 'is neither legally nor psychologically capable of parenting [Dana].'  

                                                                                                                                                                                                                                                               

It found that despite Jude's positive response to treatment, he continued to 'put[] his own  

                                                                                                                                                                                                                                                 

needs and desires first.' The court noted the 'narcissistic personality traits' observed by  

                                                                                                                                                                                                                                                      

both Dr. Blair and Dr. Lazur and that Jude continued to exhibit those traits at trial.  

                                                                                                                                                                                                                                                               

Merz's testimony supported these findings; although she had had no direct contact with  

                                                                                                                                                                                                                                                 

Jude, she reported that his telephone calls gave Dana 'a big increase in anxiety and  

                                                                                                                                                                                                                                                  

uncertainty' in part because of Jude's failure to recognize that his promises about their  

                                                                                                                                                                                                                                                

                                                                                                                                                                                                                         (continued...)  



                                                                                                                          -34-                                                                                                                 7168
  


----------------------- Page 35-----------------------

                              It does not matter that this testimony came from the daughter's therapist as                                                                                       



opposed to Drs. Blair and Lazur.  Merz's testimony is directly relevant to the issue and                                                                                         



is compelling.                    Under our precedent the superior court is permitted to aggregate other                                                                                  

                                                                          3  and the court did consider the expert testimony of Drs.  

testimony with expert testimony,                                                                                                                                                            



Blair and Lazur.  And while one might, looking at their testimony alone, find that the  

                                                                                                                                                                                               



likelihood  of  the  father  molesting  his  daughter  is  slight,  the  court  is  not  limited  to  

                                                                                                                                                                                                 



considering their testimony in isolation, nor is the likelihood of the father molesting his  

                                                                                                                                                                                               



daughter the only consideration in determining whether there is a likelihood of harm to  

                                                                                                                                                                              



the daughter if she were placed with her father.  The testimony of Merz addressed other  

                                                                                                                                                                                          



serious concerns about the daughter's problems and needs and is more than sufficient to  

                                                                                                                                                                                                 



support the trial court's factual finding that there is a serious likelihood of harm if the  

                                                                                                                                                                                               



daughter were placed in her father's custody.  Thus, I dissent from this court's decision  

                                                                                                                                                                                   



on this issue.  

                 



                              I concur with the remainder of this court's opinion and believe the superior  

                                                                                                                                                                                    



court's order granting the long-term guardianship should be affirmed.  

                                                                                                                                          



               2(...continued)  



                                                                                                                                    

future together aggravated Dana's 'fear of the unknown.' "  



               3  

                                                                                                                                                                            

                              See Diana P. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                               

Servs., 355 P.3d 541, 547 (Alaska 2015) ("While ICWA requires that the evidence  

supporting [the finding that continued custody is likely to cause serious harm to the                                                                                                        

                                                                                                                                                                                   

child] include expert testimony, it does not . . . require that the expert testimony provide  

                                                                  

the sole basis for the court's conclusion.").  



                                                                                              -35-                                                                                      7168
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC