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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Angelica C v. Jonathan C, Angelica C v. Jonathan C (3/20/2020) sp-7433

Angelica C v. Jonathan C, Angelica C v. Jonathan C (3/20/2020) sp-7433

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



ANGELICA C.,                                                          )  

                                                                      )     Supreme Court Nos. S-16874/17093  

                                                                                                               

                                Petitioner,                           )     (Consolidated)  

                                                                      )  

           v.                                                         )     Superior Court No.  1JU-13-00945 CI  

                                                                                                                                      

                                                                      )  

JONATHAN C.,                                                          )     O P I N I O N  

                        

                                                                      )  

                                Respondent.                                                                       

                                                                      )     No. 7433 - March 20, 2020  

                                                                      )  

                                                                      )  

ANGELICA C.,  

                                                                      )  

                                                                      )  

                                Appellant,                            )  

                                                                      )  

           v.                                                         )  

                                                                      )  

JONATHAN C.,  

                                                                      )  

                                                                      )  

                                Appellee.                             )  

                                                                      )  



                                                                                                                 

                                     or Review in File No.  S-16874 and appeal in File  

                      Petition f 

                                                                                                            

                      No. S-17093 from the Superior Court of the State of Alaska,  

                                                                                                                      

                      First Judicial District, Juneau, Louis J. Menendez, Judge.  



                                                                                                  

                      Appearances:                   Angelica           C.,      pro        se,     Petersburg,  

                                                                                                                 

                      Petitioner-Appellant.                  Fred   W.   Triem,   Petersburg,   for  

                                                                                                                  

                      Respondent-Appellee.                   Michael  P.  Heiser,  Ketchikan,  for  

                                                                                                   

                      Intervenors Miles C. and Tonya C.  Christine Oberholtzer,  

                                                                                                         

                      Anchorage, for Amicus Curiae Alaska Network on Domestic  

                                                                                          

                      Violence  and  Sexual  Assault.                       Brooke  Berens,  Assistant  

                                                                                                     

                      Public       Advocate,            and      Chad        Holt,      Public        Advocate,  


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

                                                                                                  

                    Anchorage,   for   Amicus   Curiae   the   Office   of   Public  

                                                                                               

                    Advocacy.           Anna  R.  Jay,  Assistant  Attorney  General,  

                                                                                                  

                    Anchorage,and JahnaLindemuth,Attorney General,Juneau,  

                                                                           

                    for Amicus Curiae State of Alaska.  



                                                                                               

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

                                        

                    and Carney, Justices.  



                                        

                    STOWERS, Justice.  



I.        INTRODUCTION  



                    A 19-year-old  man had a sexual relationship with a 13-year-old girl and  



                                                                                                                              

she became pregnant.  The man pleaded guilty to attempted sexual abuse of a minor in  



                                                                                                                                  

the second degree.   While the man was incarcerated the girl gave birth to their son.  



                                                                                                                              

When the girl was 17, she was arrested and sent to a juvenile correctional facility.  A  



                                                                                                                               

dispute arose over custody of the child and the superior court ultimately entered a  



                                                                                                                    

custody order  based  on the parents'  stipulation.                          The mother  was to have  primary  



                                                                              

physical custody and the father would have regular visitation.  



                                                                                                                   

                    After the mother's living situation became unstable, the father sought to  



                                                                                                                            

modify the custody order.  Those proceedings, which included an earlier appeal to this  



                                                                                                                            

court, resulted in two orders of relevance here.  First, the mother sought to terminate the  



                                                                                                                          

father's parental rights because his paternity was rooted in a criminal sex act.   The  



                                                                                                                        

superior court rejected the mother's interpretation of former AS 25.23.180(e) - which  



describes an "independent proceeding" for the termination of parental rights of sexual  



                                                                                                                    

abusers - and dismissed her petition.  She filed a petition for review of this decision,  



                                                                                                                              

which we granted.  Meanwhile, the superior court continued with the father's motion to  



                                                                                                                             

modify custody and ultimately awarded sole custody to the father - with visitation for  



                                                                                                                            

the mother and both sets of grandparents - after concluding that he had overcome the  



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domestic violence presumption  that would otherwise bar  his custody.                                            The mother  



                              

appeals that order.  



                                                                                                                              

                    We consolidated the petition for review and appeal for oral argument and  



                                                                                                                       

decision.  We conclude that in the termination case the superior court erred by rejecting  



                                                                                                                                  

the mother's petition to terminate the father's parental rights, and in the custody case it  



                                                                                                                              

erred by failing to properly integrate the father's sexual abuse of the mother into its best  



                                                                                                                                

interests analysis for awarding custody. We reverse both orders and remand the case for  



                                                                                                                               

the superior court to re-examine the petition to terminate parental rights and - if the  



                                                                                                                                 

father's parental rights are not terminated - to conduct a new best interests analysis to  



                 

determine custody.  



                                  

II.       FACTS AND PROCEEDINGS  



                                          

          A.        Background Facts  



                                                                                                            

                    When Jonathan C. was 18 and 19 years old he had an ongoing sexual  



                                                                                                                        

relationship with 13-year-old Angelica C., who became pregnant.  Jonathan pleaded  



                                                                                                                  

guilty to attempted sexual abuse of a minor in the second degree, and he was incarcerated  



                                                                                                                       

when Anglica gave birth at age 14 to a son, J.T., in March 2010.  Jonathan was released  



                

in March 2011.  



                                                                                                                           

                    In December 2012, when Angelica was 17, she was arrested for theft,  



                                                                                                                        

criminal trespass, and resisting arrest, and she remained in custody until she was released  



                                                                                                                                

from McLaughlin Youth Center in April 2014.  Her parents - Miles and Tonya C. -  



                                                                                                                                 

cared for J.T. in her absence, and they petitioned for guardianship of their grandson in  



                                                                                                                                

January 2013. Jonathan opposed Angelica's parents' petition, and in December 2013 he  



                                                                                                                              

initiated a separate action seeking custody of J.T.  The cases were consolidated, and  



                                                                                                                              

Angelica's parents ultimately withdrew their petition for guardianship.  Jonathan and  



                                                                                                                        

Angelica avoided trial in the custody case by reachinga compromise -primary physical  



                                                                                                                                 

custody to Angelica, regular visitation for Jonathan, and shared legal custody - and in  



                                                               -3-                                                         7433
  


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

                                                                                                                    

September  2014  the  superior  court  issued  a  custody  order  based  on  this  stipulated  



agreement.  



                                    

          B.        Custody Proceedings  



                                                            

                    1.        The 2016 custody order  



                                                                                                                      

                    At the time of the stipulated order, Angelica lived in Haines and Jonathan  



                                             

lived in Petersburg.  By late 2014 Angelica and J.T. moved to Petersburg.  Angelica's  



                                                                                                                                     

parents  remained  in  Haines,  and  Angelica  struggled  to  support  J.T.  on  her  own.  



                                                                                                                                

According to the guardian ad litem in the case, Angelica "had no money, at times no  



                                                                                                                                

food, and she was staying in an apartment frequented by drug addicts."  The guardian ad  



                                                                                                                          

litem filed a report of harm with the Office of Children's Services, and Angelica agreed  



                                                                                                                          

to a safety plan placing J.T. with Jonathan's father, Victor T., and Victor's wife.  Victor  



          

cared for J.T. intermittently during this time.  He also allowed Angelica to work at his  



                                                                                                                           

restaurant,  and  on  several  occasions  he  provided  food  to  Angelica  and  her  then- 



                  

boyfriend.  



                                                                                                                              

                    In March 2015 Angelica placed J.T. with her parents in Haines, but she  



                                                                                                                        

remained  in Petersburg.   In  September 2015 Jonathan moved to modify the  custody  



                                                                                                                              

arrangement.  At a hearing in January 2016 the superior court received evidence that  



                                                                                                                                

Angelica lacked a stable residence, that  she remained unemployed  and depended on  



                                                                                                                       

others for food, and that her  appearance and conduct indicated that  she was  abusing  



                                                                                                                               

drugs.  Angelica was unable to rebut this testimony because she failed to appear at the  



                                                                    

January hearing or show good cause for her absence.  



                                                                                                   

                    While the court had many reasons to not place J.T. with Angelica, it also  



                                                                                                                                  

identified problems with granting custody to Jonathan.  He was between jobs,  had a  



                                                                                                                         

three-month  old  child with  a new partner,  and remained  on probation.   The  special  



                                                            

master assigned to the case found that Jonathan had a history of perpetrating domestic  



                                                                                                                             

violence  based  on  his  repeated  acts  of  sexual  abuse  against  Angelica,  making  him  



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

                                                                                                                                                              1  

presumptively ineligible for custody.                                                                                                                             The superior court was uncertain whether this                                                                                                                                            



analysis was sound.                                                                  It explained:   



                                                        At this point in the litigation, the court questions applicability                                                                                                                                     

                                                        of that finding based on this record and finds either that the                                                                                                                                                                                

                                                        presumption [against granting custody based                                                                                                                                                            on domestic   

                                                        violence]   has   been   rebutted,   waived,   or   mooted   out   by  

                                                        agreement of the parties on September 19, 2014.                                                                                                                                                               This issue   

                                                        may be re-examined in the future.                                                                                                                  Regardless, the court is                                                                        

                                                        not awarding custody to [Jonathan].                                                                     



In July 2016 the court granted custody to Victor.                                                                                                                              



                                                        Angelica appealed, and we reversed the custody order because she had not                                                                                                                                                                                                                              



been given adequate notice that Victor - a non-parent who was not a formal party to the                                                                                                                                                                                                                                                                        

                                                                                                                                                                                           2        The court determined that both Angelica  

custody case - might receive custody of J.T.                                                                                                                                                                                                                                                                                          



and Jonathan were unable at the time to care for J.T.  The court did not grant non-parent  

                                                                                                                                                                                                                                                                                                                              



custody to Angelica's parents because of their history of "hostility" toward Jonathan,  

                                                                                                                                                                                                                                                                                                                                  



which included violating an agreement to return J.T. to Jonathan's care after a visit with  

                                                                                                                                                                                                                                                                                                                                                         



them.  



                                                        2.                          The 2016 petition to terminate parental rights  

                                                                                                                                                                                                                                                                       



                                                         Shortly before the superior court awarded custody to Victor in July 2016,  

                                                                                                                                                                                                                                                                                                                                                   



Angelica filed a petition in the custody case to terminate Jonathan's parental rights. She  

                                                                                                                                                                                                                                                                                                                                                           



                            1                           See  AS 25.24.150(g) ("There is a rebuttable presumption that a parent who                                                                                                                                                                                                                       



has a history of perpetrating domestic violence . . . may not be awarded [custody].");                                                                                                                                                                                                                               

AS 25.24.150(h) ("A parent has a history of perpetrating domestic violence . . . if the                                                                                                                                                                                                                                                                       

court finds that . . . the parent has engaged in more than one incident of domestic                                                                                                                                                                                                                                                

violence."); AS 25.90.010 (adopting for Title 25 the definition of domestic violence                                                                                                                                                                                                                                                   

found in Title 18); AS 18.66.990 (defining "domestic violence" to include "an offense                                                                                                                                                                                                                                                       

 . . . or an attempt to commit [an] offense" such as "a crime against the person under                                                                                                                                                                                                                                                            

AS 11.41"); AS 11.41.436(a) (defining sexual abuse of a minor in the second degree).                                                                                                                                                                                                                                                    



                            2                           Angelica C. v. Jonathan C. , No. S-16434 (Alaska Supreme Court Order  

                                                                                                                                                                                                                                                                                                                                                  

Aug. 2, 2017) (citing Elton H. v. Naomi R., 119 P.3d 969, 980 (Alaska 2005)).  

                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                -5-                                                                                                                                                                    7433
  


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

based her petition on former AS 25.23.180(e), which allowed the filing of a petition to                                                              



terminate parental rights in an "independent proceeding" in cases of sexual abuse of a   

                                                                             3  The court stayed the termination petition  

minor that resulted in conception of a child.                                                                                              



pending our decision on the appeal from its custody order.  

                                                                                                        



                       On  remand  after  we  issued  our  decision,  the  superior  court  denied  

                                                                                                                                           



Angelica's petition to terminate Jonathan's parental rights. The court relied on language  

                                                                                                                                         



in  former  AS 25.23.180(c)  that referred to  termination  "by a court order  issued  in  

                                                                                                                                                    

connection with a proceeding under this chapter or a proceeding under AS 47.10."4  

                                                                                                                                                          



Because the case before the superior court was a custody case, rather than an adoption  

                                                                                                                                         



case under AS 25.23 or a child in need of aid (CINA) proceeding under AS 47.10, the  

                                                                                                                                                   



court concluded that the statute did not permit it to terminate Jonathan's parental rights.  

                                                                                                                                                          



Angelica filed a petition for review, which we granted.  

                                                                                   



                       3.          The 2018 custody order  

                                                                      



                       After denying Angelica's petition to terminate Jonathan's parental rights,  

                                                                                                                                             

the superior court proceeded with the custody case.5  

                                                                                                                                             

                                                                                           Angelica and Jonathan each sought  



                                                                                                                                                          

to increase custody for themselves or their parents and to limit the other to visitation.  



                                                                                                                                        

Angelica's parents emphasized the harmcaused by Jonathan's sexual abuse of Angelica,  



                                                                                                                                                     

and Angelica testified that Jonathan had broken his promises to be an involved father to  



                                                                                                                                                   

J.T.  Angelica and her parents also noted that they had been the primary caregivers for  



                                                                                                                                                 

J.T. from infancy until he was placed with Victor in 2016, and they argued that J.T.  



            3          Former AS 25.23.180(c)(3), (e) (1987),                                   amended by             ch. 24,  12, SLA        



2018.  



            4          Former AS 25.23.180(c) (1987), amended by ch. 24,  12, SLA 2018.  

                                                                                                                                         



            5          On appeal Angelica assigns error to several of the superior court's orders  

                                                                                                                                             

during this period.  Because we are remanding the case on other grounds, we do not  

                                                                                                                                                  

address her arguments or describe the facts underlying them.  

                                                                                                  



                                                                         -6-                                                                   7433
  


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

would benefit from the consistency of returning to their care.                                                                                                        Jonathan contended that                                  



Angelica was unfit to parent J.T. due to her lack of employment, dependence on her                                                                                                                                              



parents, and substance abuse issues.                                                                  He also contrasted the cooperativeness he and                                                                            



Victor had shown with the antagonism Angelica and Miles C. had displayed.                                                                                                                                                   The  



guardian   ad   litem's   analysis   was   similar   to   Jonathan's,   and   she   recommended   that  



Jonathan be granted sole legal and primary physical custody.                                                                                  



                                    In April 2018 the superior court granted Jonathan sole legal and primary  



physical custody, pending his completionofabatterers'                                                                                              interventionprogram. The                                                court  



recognized that Alaska law presumes that custody may not be awarded to a parent who                                                                                                                                           



has  a   history   of   perpetrating   domestic   violence   unless   that   parent   satisfies   certain  

                                     6      But the court was skeptical that Jonathan's conviction for attempted  

requirements.                                                                                                                                                                                                 



sexual abuse of a minor made him a domestic violence perpetrator:  

                                                                                                                                                      



                                    The court remains as dubious today as it was in 2016 that  

                                                                                                                                                                                           

                                    [Jonathan]'s conviction is applicable to finding that he has a  

                                                                                                                                                                                                  

                                    history of perpetrating domestic violence within the meaning  

                                                                                                                                                                               

                                    of AS 25.24.150. However, it is better that the court proceed  

                                                                                                                                                                                

                                    withcaution than that it reject [Angelica's parents'] argument  

                                                                                                                                                                            

                                    and jeopardize the viability of this custody order.  The court  

                                                                                                                                                                                        

                                    accepts that [Jonathan]'s conviction triggers the rebuttable  

                                                                                                                                                                          

                                    presumption  that  he  is  disqualified  from  having  custody  

                                                                                                                                                                               

                                    because  of  a  history  of  perpetrating  domestic  violence.  

                                                                                                                                                                                                        

                                    [Jonathan] can rebut that presumption by providing proof he  

                                                                                                                                                                                               

                                    has completed a batterers' intervention program.  

                                                                                                                                                                         



                  6                 See  AS 25.24.150(g) ("There is a rebuttable presumption that a parent who                                                                                                                



has a history of perpetrating domestic violence . . . may not be awarded [custody.]");                                                                                                                

AS   25.24.150(h)   ("The   presumption  may  be   overcome   by   a   preponderance   of   the  

evidencethat                        theperpetrating                            parent has successfully completedanintervention program                                                                             

for batterers, where reasonably available, that the parent does not engage in substance                                                                                                                 

abuse, and that the best interests of the child require that parent's participation as a                                                                                                                                              

custodial parent . . . .").                        



                                                                                                                 -7-                                                                                                        7433
  


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

Thecourt                                     later concluded                                                          that aparenting course Jonathan                                                                                                                      completed whileincarcerated,                                                   



combined with counseling dating back to 2014, was an adequate substitute because no                                                                                                                                                                                                                                                                                                                       



batterers' intervention programs were available in Petersburg.                                                                                                                                                                                                                                         In June 2018 the court                                                                



awarded Jonathan immediate custody.                                                                                                        



                                                               The court's discussion of the custody issue included extensive factual                                                                                                                                                                                                                                               



findings and a factor-by-factor best interests analysis.  The court found that every best                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                          7            While acknowledging that  

interests factor either favored Jonathan or was neutral.                                                                                                                                                                                                                                                                                                                                           



"Angelica's life seems to be improving," the court noted that "Angelica has mental  

                                                                                                                                                                                                                                                                                                                                                                                     



health issues, including anxiety and depression.  She has struggled with homelessness,  

                                                                                                                                                                                                                                                                                                                                                   



unemployment, and substance abuse."  The court concluded that Angelica was "in no  

                                                                                                                                                                                                                                                                                                                                                                                                          



                                7                              AS 25.24.150(c) directs the court to consider nine best interests factors.                                                                                                                                                                                                                                                                                



The following four factors were most relevant to the court's analysis:                                                                                                                                                                                                                      



                                                               (2)   the   capability   and   desire   of   each   parent   to   meet   [the  

                                                               child's] needs;                                                        



                                                                . . . .  



                                                               (6)  the willingness and ability of each parent to facilitate and                                                                                                                                                                                                       

                                                               encourage a close and continuing relationship between the                                                                                                                                                                                                                

                                                               other  parent and                                                                 the child,                                         except that the court may not                                                                                                     

                                                               consider this willingness and ability if one parent shows that                                                                                                                                                                                                         

                                                               the   other   parent   has  sexually   assaulted   or   engaged   in  

                                                               domestic violence against the parent or a child, and that a                                                                                                                                                                                                                       

                                                               continuing relationship with the other parent will endanger                                                                                                                                                           

                                                               the health or safety of either the parent or the child;                                                                                                                                                               



                                                               (7) any evidence of domestic violence, child abuse, or child                                                                                                                             

                                                               neglect in the proposed custodial household or a history of                                                                                                                                                                                                                   

                                                               violence between the parents; [and]                                                                                                          



                                                               (8)  evidence that substance abuse by either parent . . . directly                                                                                                                                                                          

                                                               affects the emotional or physical well-being of the child . . . .                                                                                                                                                                                                           



                                                                                                                                                                                                     -8-                                                                                                                                                                                        7433
  


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

                                                                                                                                                                8  

position to assume                 primary responsibility"                     for J.T.     becauseshecouldnot meet his                             needs.   



                                                                                                                                                               

                         One of the best interests factors is each parent's willingness to foster a  

                                                                                              9   The court stated that it did not hold  

                                                                                                                                                          

                                                                                  

relationship between the child and the other parent. 



it against Angelica that she had petitioned to terminate Jonathan's parental rights, but it  

                                                                                                                                                               



did find that she and her parents wanted to limit or eliminate Jonathan's involvement in  

                                                                                                                                                              

J.T.'s life. Another factor is the parents' history of domestic violence.10  The court made  

                                                                                                                                                        



findings on the absence of domestic violence in the parents' respective homes, but it did  

                                                                                                                                                            



not acknowledge and weigh Jonathan's sexual abuse of Angelica.  Because the court  

                                                                                                                                                        



found that the balance of the best interests factors favored Jonathan, the court awarded  

                                                                                                                                                  



primary physical custody to Jonathan; it also awarded him sole legal custody.  

                                                                                                                                  



                         Relevant to this matter, in September 2018 legislative amendments to the  

                                                                                                                                                            

                                                                                           11  and in October Angelica petitioned,  

"independent proceeding" provision took effect,                                                                                               

                                                                                



in a new case, to terminate Jonathan's parental rights. In addition to the parties' briefing,  

                                                                                                                                                  



we received briefing  from three amici curiae - the  Alaska  Network on  Domestic  

                                                                                                                                               



Violence and Sexual Assault, the Office of Public Advocacy (OPA), and the State of  

                                                                                                                                                              

Alaska - on the interpretation of AS 25.23.180.12                                                   We consolidated the petition for  

                                                                                                                                                            



review and appeal for oral argument and decision.  

                                                                              



III.         STANDARDS OF REVIEW  

                                                   



                         We review questions of statutory interpretation de novo, "adopting the rule  

                                                                                                                                                           



             8           See  AS 25.24.150(c)(2), (8).                  



             9           See  AS 25.24.150(c)(6).   



             10          See  AS 25.24.150(c)(7).   



             11          See  ch. 24,  12-17, SLA 2018.                   



             12          We thank all amici for their thoughtful briefing.                         



                                                                              -9-                                                                       7433
  


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

                                                                                                                                           13  

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



construing statutes de novo, we consider three factors:                                             'the language of the statute, the                   

legislative history, and the legislative purpose behind the statute.' "                                                   14  



                                                                                                                                                        

                        "Superior courts have broad discretion in child custody decisions, and we  



                                                                                                                                                 

will reverse only if findings of fact are clearly erroneous or if the superior court abused  

                           15   "Whether the court's findings on domestic violence are supported by  

                                                                                                                                                         

its discretion." 

the record is a question of fact which we review for clear error."16                                                    "A factual finding is  

                                                                                                                                                          



clearly erroneous when a review of the record leaves [us] with a definite and firm  

                                                                                                                                                     

conviction that the superior court has made a mistake."17   "An abuse of discretion exists  

                                                                                                                                                   



where  the  superior   court  'considered  improper   factors  in  making  its  custody  

                                                                                                                                             



determination,                 failed        to     consider            statutorily           mandated              factors,         or      assigned  

                                                                                                                                           

disproportionate weight to particular factors while ignoring others.' "18  

                                                                                                                            



IV.         DISCUSSION  



                        We consider first the question raised in Angelica's petition for review:  

                                                                                                                                                               



            13          Schacht v. Kunimune                    , 440 P.3d 149, 153 (Alaska 2019) (quoting                                      Toliver  



v.  Alaska State Comm'n for Human Rights                                      , 279 P.3d 619, 622 (Alaska 2012)).                 



            14           City of Valdez v. State, 372 P.3d 240, 248 (Alaska 2016) (quoting Oels v.  

                                                                                                                                                          

Anchorage Police Dep't Emps. Ass'n , 279 P.3d 589, 595 (Alaska 2012)).  

                                                                                                                        



            15           Geldermann v. Geldermann, 428 P.3d 477, 481 (Alaska 2018) (quoting  

                                                                                                                                              

Riggs v. Coonradt, 335 P.3d 1103, 1106 (Alaska 2014)).  

                                                                                           



            16          Bruce  H.  v.  Jennifer  L.,  407  P.3d  432,  436  (Alaska  2017)  (quoting  

                                                                                                                                             

 Caroline J. v. Theodore J., 354 P.3d 1085, 1090 (Alaska 2015)).  

                                                                                                         



            17           Geldermann, 428 P.3d at 481 (alteration in original) (quoting Riggs, 335  

                                                                                                                                                      

P.3d at 1106).  

               



            18          Id. (quoting Riggs, 335 P.3d at 1106).  

                                                                                  



                                                                           -10-                                                                    7433
  


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

whether the superior court erred by denying her petition to terminate Jonathan's parental                                                           



rights.   We then discuss the court's order on Jonathan's motion to modify custody.                                                         



             A.	         The          Superior               Court            Erred            In       Concluding                  That           Former  

                         AS 25.23.180(c) Does Not Permit Termination Of Parental Rights In                                                                     

                         Custody Cases.   



                         The   superior   court   denied   Angelica's   petition   to   terminate   Jonathan's  



parental    rights    without    reaching    the    merits    because    it    concluded    that    former  



AS 25.23.180(c) was inapplicable to custody cases.                                                   The court relied in part on                         In re   



                                           19  

Adoption of Xavier K.                     ,                             

                                               in which we said:  



                                                                                                                                

                         Two means exist for involuntarily terminating parental rights  

                                                                                                                   

                         in Alaska. The first is the Children in Need of Aid (CINA)  

                                                                                                                          

                         statute, which lays out rigorous criteria for parental unfitness  

                                                                                                                                           

                         that the state must prove by clear and convincing evidence.  

                                                                                                                               

                         The  second  is  through  adoption,  which  may  take  place  

                                                                                                                                    

                         without  the  consent  of  the  biological  parent(s)  under  the  

                                                                                               [20]  

                                                                           

                         conditions outlined in AS 25.23.050. 



                                                                                                         21  

We also made a similar statement in Nelson v. Jones .                                                           But the question raised in  

                                                                                                                                                               

Angelica's petition for review was not before us in those cases,22 and we disavow our  

                                                                                                                                                             



prior dicta to the extent that it is inconsistent with our conclusions today.  

                                                                                                                              



             19          268  P.3d  274  (Alaska  2012).  



             20          Id.  at  276.  



             21          944  P.2d  476,  479  (Alaska  1997)  ("Alaska  provides  for  the  termination  of  



parental   rights   only   in   the   context   of   child   in   need   of   aid   (CINA)  proceedings  

under  AS 47.10.080 and  adoption proceedings  under AS 25.23.180." (footnotes  omitted)  

(citing  Perry  v.  Newkirk,  871  P.2d   1150,   1151  (Alaska   1994))).  



             22          See Xavier K., 268 P.3d at 276-77 (describing attempt by child's biological  

                                                                                                                                                 

mother to use adoption statutes to sever biological father's parental rights by adopting  

                                              

her own child); Nelson, 944 P.2d at 479 (summarizing father's argument that restrictions  

                                                                                                                                              

on visitation constituted a de facto termination of parental rights).  

                                                                                                               



                                                                              -11-	                                                                      7433
  


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

                         1.	         The 1987 amendments to former AS 25.23.180 permitted an                                                              

                                     "independent proceeding" to terminate parental rights that is                                                          

                                     distinct from adoption or CINA proceedings.                     



                         "Statutory interpretation in Alaska begins with the plain meaning of the                                                        

statute's text."          23  

                                                                                                                                                     

                               The relevant portions of former AS 25.23.180 - as amended in 1987,  



                                                                

prior to its amendment in 2018 - follow:  



                                                                                                                                   

                         (c) The relationship of parent and child may be terminated by  

                                                                                                                            

                         a court order issued in connection with a proceeding under  

                                                                                                                        

                        this chapter or a proceeding under AS 47.10 on the grounds  



                                                                                                       

                                     (1) specified in AS 47.10.080(o) or 47.10.088;  



                                                                                                                 

                                     (2)  that  a  parent  who  does  not  have  custody  is  

                                                                                                                   

                                     unreasonably                withholding               consent           to      adoption,  

                                                                                                                            

                                     contrary to the best interest of the minor child; or  



                                                                                                                            

                                     (3) that the parent committed an act constituting sexual  

                                                                                                                                   

                                     assault or sexual abuse of a minor . . . that resulted in  

                                                                                                                                 

                                     the conception of a child and that termination of the  

                                                                                                                               

                                     parental rights of the biological parent is in the best  

                                                                  

                                     interests of the child.  



                                

                         . . . .  



                                                                                                                                 

                         (e) A petition for termination of the relationship of parent and  

                                                                                                                                   

                         child made in connection with an adoption proceeding or in  

                                                                                                                        

                         an independent proceeding for the termination of parental  

                                                                                                                                  

                        rights on grounds set out in (c)(3) of this section may be  

                                                                                        [24]  

                                                                      

                        made by [one of several movants]. 



This language alone is sufficient for us to conclude that the former statute permitted an  

                                                                                                                                                           



"independent proceeding" distinct from adoption and CINA proceedings.  

                                                                                                                



                        Former section .180(e) referred to petitions to terminate parental rights "in  

                                                                                                                                                          



connection with an adoption proceeding or in an independent proceeding," indicating  

                                                                                                                                             



            23	          Ward  v.  State,  Dep't  of  Pub.  Safety,  288  P.3d  94,  98  (Alaska  2012).  



            24          Former  AS  25.23.180(c),  (e)  (1987),  amended  by  ch.  24,    12,  SLA  2018.  



                                                                            -12-                                                                     7433  


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

that these are two different types of proceedings. Because former section .180(c) further                                                                                                                               



distinguished "a proceeding under this chapter" (i.e., AS 25.23) from "a proceeding                                                                                                                        



under AS 47.10," it must be the case that an "independent proceeding" is distinct from                                                                                                                                       



both adoption proceedings under Title 25, Chapter 23 of the Alaska Statutes and CINA                                                                                                                                      



proceedings under Title 47, Chapter 10.                                                                      The fact that these three grounds were arrayed                                                           



in list form further confirms this reading.                                              



                                    "Whenever possible 'we interpret each part or section of a statute with                                                                                                                   

                                                                                                                                                                                    25      The amici curiae  

every other part or section, so as to create a harmonious whole.' "                                                                                                                                                       



note several provisions under  Title 25,  Chapter  23 indicating that an  "independent  

                                                                                                                                                                                                     



proceeding" is distinct fromadoption or CINA proceedings. For example, thetimelimits  

                                                                                                                                                                                                                            



for  appealing  adoptions  and  termination  orders  under  former  AS  25.23.180  were  

                                                                                                                                                                                                                            

                      26  The disclosure requirements in adoption cases are also applied expressly to  

distinct.                                                                                                                                                                           

termination cases under former AS 25.23.180.27                                                                                          Further, the statutes created distinct  

                                                                                                                                                                                                                      



venuerequirements for adoption proceedings,CINA-related adoptions, andterminations  

                                                                                                                                                                                                          



                  25                Mat-Su Valley Med. Ctr., LLC v. Bolinder                                                                               , 427 P.3d 754, 763 (Alaska                               



2018) (quoting                           McDonnell v. State Farm Mut. Auto. Ins. Co.                                                                             , 299 P.3d 715, 721 (Alaska                          

2013)).  



                  26                 Compare AS 25.23.140(b) ("[U]pon the expiration of one year after an  

                                                                                                                                                                                                                                   

adoption  decree  is  issued,  the  decree  may  not  be  questioned  .  .  .  ."),  with  former  

                                                                                                                                                                                                                       

AS 25.23.140(c) (1987), amended by ch. 24,  7, SLA 2018 ("[O]ne year after a decree  

                                                                                                                                                                                                                       

is issued terminating parental rights on grounds set out in AS 25.23.180(c)(3), the order  

                                                                                                                                                                                                                            

may not be challenged . . . .").  

                                                                     



                  27                See former AS 25.23.150(c) (1987), amended by ch. 24,  9, SLA 2018  

                                                                                                                                                                                                                            

("[A] person may not disclose the identity or address of an adoptive parent, an adopted  

                                                                                                                                                                                                                     

child,  a  child  who  is  the  subject  of  a  proceeding  under  AS  25.23.180(c)(3),  or  a  

                                                                                                                                                                                                                                      

biological parent whose parental rights have been terminated on grounds set out in  

                                                                                                                                                                                                                                    

AS 25.23.180(c)(3).").  

           



                                                                                                                -13-                                                                                                         7433
  


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

under former AS 25.23.180.                            28  



                                                                                                                                                         

                          Finally, the amici curiae observe that a portion of the Office of Public  



                                                                                                                                                                

Advocacy's enabling statute "would be entirely superfluous" if former AS 25.23.180 did  



                                                                                                                                                       

not permit termination actions outside the adoption and CINA contexts. This is because  



                                                                                                                                                                  

AS 44.21.410(a)(5) directs OPA to "provide legal representation" in several types of  



                                                                                                                                                         

proceedings,   including   "in   cases   involving   petitions   to   adopt   a   minor   under  



                                                                                                                                                                

AS 25.23.125,"  "in children's proceedings under AS 47.10.050," and in "petitions for  

                                                                                                                                                   29     If  the  

                                                                                                                                                               

the  termination  of  parental  rights  on  grounds  set  out  in  AS  25.23.180." 



"independent proceeding" under former AS 25.23.180 were synonymous with either  

                                                                                                                                                           



adoption or CINA proceedings, there would be no need for a separate provision for the  

                                                                                                                                                                



independent termination action in OPA's enabling statute.  

                                                                                                  



                          For  these  reasons,  we  conclude  that  the  1987  amendments  to  former  

                                                                                                                                                        



AS25.23.180(which werein effect throughout thesuperiorcourt proceedings)permitted  

                                                                                                                                                    



Angelica to petition for termination of Jonathan's parental rights in the pending custody  

                                                                                                                                                       



         30  

case. 



                          2.	         The  2018  amendments  to  AS  25.23.180  merely  clarify  the  

                                                                                                                                                              

                                      statute's meaning.  

                                                         



                          The  legislature  recently  amended  AS  25.23.180,  and  its  action  was  

                                                                                                                                                             



             28           Compare              AS         25.23.030(a)                ("Proceedings                  for       adoption             shall        be  



brought . . . ."),           with  AS 25.23.030(d) ("The venue for an adoption proceeding for a child                                                       

in state custody under AS 47.10 . . . ."),                                         and with           former AS 25.23.030(c) (1987),                   

amended by              ch. 24,  1, SLA 2018 ("Proceedings for the termination of parental rights                                                         

on the grounds set out in AS 25.23.180(c)(3) shall be brought . . . .").                                                      



             29           Former AS 44.21.410(a)(5) (1987), amended by ch. 24,  18, SLA 2018.  

                                                                                                                                                                       



             30          A parent or other interested party also could file an independent action  

                                                                                                                                                          

under          AS        25.23.180              even          if    there         were         no       current           custody            case.             See  

                                                                                                                                                            

AS 25.23.180(c), (e).  

                                   



                                                                               -14-	                                                                        7433
  


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

informed by the case between Angelica and Jonathan. Senator Berta Gardner sponsored                                                                                                



Senate Bill 134 in response to a concern arising from the superior court's decision in this                                                                                                       



case that AS 25.23.180 did not permit termination of parental rights outside the adoption                                                                                             

                                              31     Senator Gardner stated that the bill did not "set any new policy"  

and CINA contexts.                                                                                                                                                                       

and that it was intended "to simply make existing policy abundantly clear."32                                                                                                               These  

                                                                                                                                                                                           



comments notwithstanding, we have said that asking  

                                                                                                            



                               "whether a legislature which has amended a statute intends to  

                                                                                                                                                                       

                               change  or  merely  clarify  the  statute  is  usually  fruitless"  

                                                                                                                                 

                               because  the  legislature's  opinion  as  to  the  meaning  of  a  

                                                                                                                                                                       

                               statute passed by an earlier legislature is no more persuasive  

                                                                                                                                                  

                               than that of a knowledgeable commentator.[33]  

                                                                                                    



Thus, we independently decide whether the recent amendments change the effect of  

                                                                                                                                                                                                     



AS 25.23.180 or merely clarify its meaning.  

                                                                                  



                               The principal change made by S.B. 134 was to restructure AS 25.23.180(c)  

                                                                                                                                                                            



for clarity. The 2018 amendments incorporated the "independent proceeding" language  

                                                                                                                                                                                     



of former AS 24.23.180(e) directly into AS 25.23.180(c):  

                                                                                                       



                               (c) The relationship of parent and child may be terminated by  

                                                                                                                                                                     

                               a court order issued in connection with a proceeding  

                                                                                                                               



                31             See  Statement of Sen. Berta Gardner at 1:37:37-1:38:20, 1:56:27-1:57:27                                                             



(Hearing on Senate Bill (S.B.) 134 Before the Sen. Jud. Comm., 30th Leg., 2d Sess.                                                                                                           

(Apr. 16, 2018) ("[Miles C.] was very instrumental in bringing the issue to my attention                                                                                              

and starting our research . . . .").                              



                32             Statement  of  Sen.  Berta  Gardner  at  3:04:02-3:04:50,  3:05:12-3:05:16,  

                                                                                                                                                                  

Hearing on S.B. 134 Before the H. Health & Soc. Servs. Comm., 30th Leg., 2d Sess.  

                                                                                                                                                                                              

(Apr. 24, 2018).  

                       



                33             Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444, 448 n.12 (Alaska  

                                                                                                                                                                                        

2009) (quoting Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248, 1252 (Alaska  

                                                                                                                                                                                        

 1988)).  



                                                                                                -15-                                                                                          7433
  


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

                                   (1)  under this chapter or a proceeding under AS 47.10                             

                                   on the grounds     



                                              (A)  specified in AS 47.10.080(o) or 47.10.088;                

                                              or  



                                                                                                                             

                                              (B) that a parent who does not have custody is  

                                                                                                               

                                              unreasonably withholding consent to adoption,  

                                                                                                                     

                                              contrary to the best interest of the minor child;  



                                                                                                                    

                                   (2) under this chapter, a proceeding under AS 47.10,  

                                                                                                                          

                                   or an independent proceeding on the grounds that the  

                                                                                                                  

                                   parent committed an act constituting sexual assault,  

                                                                                                     [34]  

                                                                                                     

                                   sexual abuse of a minor, or incest . . . . 



This new structure better reflects our interpretation of the 1987 statute discussed above  

                                                                                                                                            



by making clear that a petition for termination of parental rights based on sexual assault  

                                                                                                                                           



or  abuse  can  proceed  in  an  adoption  case,  a  CINA  case,  or  in  an  "independent  

                                                                                                                              

proceeding."35  



                       The final change of any import here was the addition of AS 25.23.180(o):  

                                                                                                                               



                       A petition for termination of parental rights under (c)(2) of  

                                                                                                                            

                       this   section   may   be   filed   to   initiate   an   independent  

                                                                                                        

                       proceeding  not  connected  to  a  petition  for  adoption  or  a  

                                                                                                                             

                       proceeding under AS 47.10.[36]  

                                                              



This provision emphasizes the independence of the "independent proceeding" described  

                                                                                                                                      



above.   We disagree with Jonathan that the addition of this provision constitutes a  

                                                                                                                                                    



"legislative admission" that the former law did not permit termination of parental rights  

                                                                                                                                             



outside  of  adoption  or  CINA  proceedings.                                        This  provision  merely  reflects  the  

                                                                                                                                                



            34         Ch.  24,     12,  SLA  2018.  



            35         The  legislature  also  added  incest  as  a  basis  for  terminating  parental  rights,  



but  that  has  no  bearing  on  this  case.   See  id.  



            36         Ch.  24,     17,  SLA  2018.  



                                                                       -16-                                                                  7433
  


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

legislature's goal of making it "abundantly clear" that a petition like Angelica's can                                                                



                                       37  

proceed to the merits,                                                                                                                                   

                                           and we conclude that the effect of the 2018 amendments was to  



                    

clarify the statute.  



                                                                                                                                                         38  

                                                                                                                                                              

                                                                                                                                         

                        We  reverse  the  superior  court's  order  denying  Angelica's  petition. 



Jonathan testified that he had sexual intercourse with Angelica multiple times when she  

                                                                                                                                                      



was 13 years old and he was at least 18 years old, and his admitted sexual abuse of  

                                                                                                                                                        

Angelica is "an act constituting sexual assault or sexual abuse of a minor."39                                                             Jonathan  

                                                                                                                                            



is  subject  to  having  his  parental  rights  terminated,  but  only  if  the  superior  court  

                                                                                                                                                  

determines that it is in J.T.'s best interests to do so.40  

                                                                                        



                        3.          The best interests factors to be applied under AS 25.23.180  

                                                                                                                                   



                        To terminate parental rights under former AS 25.23.180(c)(3), the court  

                                                                                                                                                   



must consider whether termination "is in the best interests of the child." Among various  

                                                                                                                                               



            37          Statement of Sen. Berta Gardner at 3:05:12-3:05:16, Hearing on S.B. 134                                                      



Before the H. Health & Soc. Servs. Comm., 30th Leg., 2d Sess. (Apr. 24, 2018).                                                        



            38          As we noted above, Angelica has filed - in a new case - a petition under  

                                                                                                                                                  

the statute as amended in 2018.  We expect that the superior court will consolidate the  

                                                                                                                                                       

custody case with the new case.  

                                                 



            39          Former AS 25.23.180(c)(3) (1987), amended by ch. 24,  12, SLA 2018;  

                                                                                                                                                  

see AS 11.41.436(a)(1) ("An offender commits the crime of sexual abuse of a minor in  

                                                                                                                                                         

the second degree if . . . being 17 years of age or older, the offender engages in sexual  

                                                                                                                                                 

penetration with a person who is 13, 14, or 15 years of age and at least four years  

                                                                                                                                                  

younger than the offender . . . .").  Because Jonathan admits to this conduct constituting  

                                                                                                                                       

sexual abuse of a minor, we need not decide whether Jonathan's conviction for attempted  

                                                                                                                                           

sexual  abuse  of  a  minor  in  the  second  degree,  standing  alone,  establishes  that  he  

                                                                                                                                                       

committed   "an   act   constituting   sexual   assault   or   sexual   abuse   of   a   minor."  

                                                                                                                                            

AS 25.23.180(c)(3).  

        



            40          See former AS 25.23.180(c)(3) (1987), amended by ch. 24,  12, SLA 2018  

                                                                                                                                                    

(providing that courts must consider whether "termination of the parental rights of the  

                                                                                                                                                       

biological parent is in the best interests of the child").  

                                                                                    



                                                                          -17-                                                                     7433
  


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

arguments Jonathan raises regarding AS 25.23.180, he criticizes its failure to "provide                                                                                                                                                                                                



guidelines for determining best interests."                                                                                                             None of the parties have identified anything                                                                                   



in the legislative history of the 1987 law that would clarify which factors a court should                                                                                                                                                                                                     



use in                   making   this determination.                                                                             We also have been                                                            unable to                             find  any  relevant  



legislative history.   



                                                The   superior   court   did   not   reach   the   best   interests   issue   because   it  



concluded that Angelica could not petition to terminate Jonathan's parental rights in the                                                                                                                                                                                                                   



custody matter.                                            The issue is therefore not before us and we choose not to decide it                                                                                                                                                                                   



definitively at the present juncture of this case. The following observations are intended                                                                                                                                                                                              



to aid the superior court in determining the best interests of a child in the independent                                                                                                                                                                    



parental rights termination context.                                                                                             



                                                We                  agree                       with                    the                parties                         that                  the               best                   interests                             factors                         in  



AS 25.24.150(c) - which govern custody cases - can be at least a starting point for a                                                                                                                                                                                                                              



termination action under AS 25.23.180.                                                                                                             The relevance of these factors is clear; what                                                                                                     



remains to be clarified is whether they are sufficient.                                                                                                                                              Custody orders, unlike orders                                                             



terminating parental rights, "typically do not sever one party's constitutionally protected                                                                                                                                                                                           

                                                           41          We have said that when deciding whether to replace a biological  

parental rights."                                                                                                                                                                                                                                                            



parent   through   an   adoption   proceeding,   "courts   are  free  to   consider   relevant  

                                                                                                                                                                                                                                                                                      



AS 25.24.150(c) factors for guidance in making a best interests determination," but  

                                                                                                                                                                                                                                                                                                          

doing so is not mandatory.42  

                                                       



                                                In the CINA context, when deciding if a parent has remedied the conditions  

                                                                                                                                                                                                                                                                                  



that place the child at risk of harm, the legislature has directed that  

                                                                                                                                                                                                                                                 



                        41                      In  re  Adoption  of  Hannah  L.,  390  P.3d   1153,   1159  (Alaska  2017).  



                        42                      Id.  at   1160.  



                                                                                                                                                    -18-                                                                                                                                                            7433  


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

                             the court may consider any fact relating to the best interests   

                             of the child, including       



                                           (1)  the likelihood of returning the child to the parent                                             

                                           within a reasonable time based on the child's age or                                                          

                                           needs;  



                                                                                                                                                       

                                           (2) the amount of effort by the parent to remedy the  

                                                                                                                 

                                           conduct or the conditions in the home;  



                                                                                                     

                                           (3) the harm caused to the child;  



                                                                                                                                                    

                                           (4)  the  likelihood  that  the  harmful  conduct  will  

                                                                 

                                           continue; and  



                                                                                                                                                         

                                           (5) the history of conduct by or conditions created by  

                                                                  [43]  

                                                    

                                           the parent. 



But the ultimate decision whether to terminate parental rights in a CINA case turns on  

                                                                                                                                                              

                                                                        44    a  more  "capacious"  standard  which  calls  for  "a  

"the  best  interests  of  the  child,"                                                                                                                                              

                                                         



comprehensive judgment as to whether the child's best interests favor the termination of  

                                                                                                                                                                                      

parental rights."45  

                   



                             In  adoption  and  CINA  proceedings,  the  stakes  are  higher  than  in  an  

                                                                                                                                                                                    



ordinary custody case:  in these cases the court is asked to terminate a parent's parental  

                                                                                                                                                                         



rights, not just to decide the nature and terms of a parent's physical custody rights.  The  

                                                                                                                                                                                  



same is true for a termination action under AS 25.23.180.  The irrevocable termination  

                                                                                                                                                                  



of parental rights is normally accompanied by heightened protections for the adverse  

                                                                                                                                                                          

parent.46            Yet the termination of parental rights procedure at issue here also reflects a  

                                                                                                                                                                                        



              43             AS 47.10.088(b).   



              44             AS 47.10.088(c).   



              45            Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 186 (Alaska 2008).  

                                                                                                                                                                           



              46             See, e.g.        , AS 47.10.086(a) (requiring the State to make "timely, reasonable                                                    



                                                                                                                                                             (continued...)  



                                                                                         -19-                                                                                  7433
  


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

choice by the legislature to protect the victims of sexual abuse from being subjected to                                                                                                                                                                                  



years-long   custody   disputes   with   their   assailants,   re-victimizing   them;   this   policy  



militates in favor of weighing the underlying sexual abuse more heavily, and it seems                                                                                                                                                                        



that the victim-parent's rights should receive strong, though not necessarily dispositive,                                                                                                                                                  



consideration.   The court should also consider the child's rights:                                                                                                                                            it may not be in the                                   



child's best interests to have an ongoing child-parent relationship with a parent who has                                                                                                                                                                             



a history of sexual abuse.                                  



                                          In sum, when the superior court determines on remand whether it is in the                                                                                                                                                    



child's   best   interests   to   terminate   parental   rights   under   AS   25.23.180(c),   it   should  



consider the relevant best interests factors enumerated in the custody and adoption                                                                                                                                                                



contexts, as well as other factors germane to the child's best interests, giving appropriate                                                                                                                                                 

weight to the legislative policy choices described above.                                                                                                                         47  



                     B.	                  The Superior Court Erred In Granting Jonathan's Motion To Modify  

                                                                                                                                                                                                                                                        

                                          Custody.  



                                          Angelica also appealed the superior court's order awarding custody to  

                                                                                                                                                                                                                                                                         



Jonathan.                            We conclude the superior  court committed legal error  when it failed  to  

                                                                                                                                                                                                                                                                         



account for Jonathan's sexual abuse of Angelica in its analysis of two of the best interests  

                                                                                                                                                                                                                                                       



factors.  Because these errors affected the relative weight the court gave to each of the  

                                                                                                                                                                                                                                                                       



factors in its analysis, we also conclude that the court abused its discretion in failing to  

                                                                                                                                                                                                                                                                          



consider a statutory factor.  

                                                                



                     46                   (...continued)  



                                                                                                                                                                                                                                                           

efforts" to reunify parent and child); AS 47.10.088(a) (requiring a court to make certain  

                                                                                                                                                                                                                                      

findings by "clear and convincing evidence" before terminating parental rights).  



                     47                   We repeat that AS 25.23.180 reflects the legislature's enactment of the  

                                                                                                                                                                                                                                                                      

public policy of Alaska; the legislature is free to explicitly answer the additional policy  

                                                                                                                                                                                                                                                             

question of which best interests factors it wants courts to consider in these cases.  

                                                                                                                                                                                                                                            



                                                                                                                                  -20-	                                                                                                                          7433
  


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

                        The legislature has expressed its intent that in general "both parents have                                                



                                                                                       48  

the opportunity to guide and nurture their child."                                                                                          

                                                                                           But in 2004 the legislature clarified  



                                                                                                                                 

its intent when itenacted aset ofpresumptions andconditions for custody determinations  

                                                                   49   Alaska Statute 25.24.150(g) provides:  "There  

                                                                                                                                               

                                                   

in cases involving domestic violence. 



is a rebuttable presumption that a parent who has a history of perpetrating domestic  

                                                                                                                                           



violence against the other parent . . . may not be awarded" custody of the child.  And  

                                                                                                                                                   



AS 25.25.150(h) defines "a history of perpetrating domestic violence" as engaging in  

                                                                                                                                                        



more than one incident of domestic violence or causing serious physical injury during  

                                                                                  

a single incident. Domestic violence includes the crime of sexual abuse of a minor,50 and  

                                                                                                                                                     



Jonathan admits that he committed more than one act of sexual abuse against Angelica.  

                                                                                                                                                             



He therefore has a history of perpetrating domestic violence against Angelica, and the  

                                                                                                                                                      



rebuttable presumption against his custody of J.T. applies.  

                                                                                                           



                        Despite remaining "dubious" that Jonathan's sexual abuse of Angelica was  

                                                                                                                                                     



an act of domestic violence that triggered the rebuttable presumption against Jonathan,  

                                                                                                                                          



the superior court nevertheless accepted that the presumption applied.  And the court  

                                                                                                                                                  



determined that he had overcome this presumption by attending a parenting course while  

                                                                                                                                                  



he was incarcerated and counseling after his release.  But when the court addressed the  

                                                                                                                                                      



various AS 25.24.150(c) best interests factors, it did not mention, much less weigh, that  

                                                                                                                                                     



Jonathan sexually abused Angelica on multiple occasions.  

                                                                                      



            48          Ch.  88,     1(a),  SLA   1982.  



            49          See  ch.   111,    5,  SLA  2004.  



            50          See  AS  25.90.010  (adopting  for  Title  25  the  definition  of  domestic  violence  



found  in  Title   18);  AS   18.66.990  (defining  "domestic  violence"  to  include  "an offense  

.  .  .  or  an  attempt  to  commit [an]  offense"  such  as  "a  crime  against  a  the pe                                           rson under  

AS   11.41");  AS   11.41.436(a)(1)   (defining   offense   of   sexual   abuse   of   a  minor   in  the  

second  degree).  



                                                                          -21-                                                                    7433
  


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

                              In its 2018 order conditionally granting custody to Jonathan, the superior                                                                 



 court considered and applied each of the best interests factors to the facts before it,                                                                                              



 including    factors    (6)    (willingness    to    facilitate    a    parent-child    relationship)    and  

                                                    51  But its analysis was devoid of the defining fact of this case:  

 (7) (domestic violence).                                                                                                                                                                   



 Jonathan's sexual abuse of Angelica.  

                                                            



                             Alaska Statute 25.24.150(c) enumerates nine factors that the superior court  

                                                                                                                                                                                



 "shall consider" in determining the best interests of the child.  Factor (6) is  

                                                                                                                                                              



                             the willingness and ability of each parent to facilitate and  

                                                                                                                                                      

                              encourage a close and continuing relationship between the  

                                                                                                                                                       

                              other  parent and  the child,  except  that the court may not  

                                                                                                                                                      

                              consider this willingness and ability if one parent shows that  

                                                                                                                                                      

                              the  other  parent  has  sexually  assaulted  or  engaged  in  

                                                                                                                                                        

                              domestic violence against the parent or a child, and that a  

                                                                                                                                                           

                              continuing relationship with the other parent will endanger  

                                                                                                                                          

                             the health or safety of either the parent or the child.[52]  

                                                                                                                                



 Factor (7) directs the court to consider "any evidence of domestic violence, child abuse,  

                                                                                                                                                                             



 or child neglect in the proposed custodial household or a history of violence between the  

                                                                                                                                                                                    

 parents."53  



                              The superior court weighed what the parties had said and shown about their  

                                                                                                                                                                                 



 willingness to facilitate J.T.'s relationship with his entire family.  The court stated that  

                                                                                                                                                                                  



 it "does not hold anything against Angelica or her parents for seeking to terminate  

                                                                                                                                                                      



 [Jonathan's]  parental  rights"  and  that  its  analysis  of  the  "willingness"  factor  had  

                                                                                                                                                                                 



 "ignor[ed] the termination action."  But the court's analysis also ignored the underlying  

                                                                                                                                                                   



fact  of that action:  Jonathan sexually abused and impregnated Angelica.  Angelica's  

                                                                                                                                                                  



               51            See supra             note 8 and accompanying text.                             



               52            AS 25.24.150(c)(6) (emphasis added).                                



               53            AS 25.24.150(c)(7).   



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willingness to facilitate a relationship between J.T. and Jonathan should have been                                                                                                                                                                                                                                      



excluded from the court's analysis.                                                                                                          The court excluded from consideration only her                                                                                                                                    



attempt    to    terminate    Jonathan's    parental    rights    but    not    other    evidence    of    her  



unwillingness   to   facilitate   a   relationship  between   J.T.   and   Jonathan,   such   as   her  



reluctance to share custody with Jonathan and disparaging comments she made about                                                                                                                                                                                                                                      



him. Similarly, when the court considered the domestic violence factor, it examined the                                                                                                                                                                                                                                           



record for evidence of violence in the homes of Jonathan, Angelica's parents, and Victor.                                                                                                                                                                                                                                                        



But it did not mention the fact that Jonathan had illegal sexual relations with Angelica                                                                                                                                                                                                                  



on multiple occasions, impregnated Angelica while she was a minor, and was later                                                                                                                                                                                                                                          



convicted of attempted sexual abuse against her.                                                                                                                                              Because factors (6) and (7) required                                                                          



the court to consider Jonathan's sexual abuse of Angelica in its best interest analysis, the                                                                                                                                                                                                                                     



court committed legal error when it failed to account for this seminal fact.                                                                                                                                                                                                



                                                    The   court's   conclusion  that   Jonathan   rebutted   the   domestic   violence  



presumption did not permit it to thereafter ignore the underlying facts of the conduct                                                                                                                                                                                                                        



making him a domestic violence perpetrator when it made its best interests analysis.                                                                                                                                                                                                                                                A  



rebuttable presumption is a legal inference drawn from certain facts, and it may be                                                                                                                                                                                                                                               

                                                                                                                                                                                                      54         Under Alaska law, a parent who  

overcome by the introduction of contrary evidence.                                                                                                                                                                                                                                                                          

has a history of perpetrating domestic violence is presumed unfit for custody;55  to rebut  

                                                                                                                                                                                                                                                                                                                         



the presumption is only to once again become  eligible  for custody.   Once Jonathan  

                                                                                                                                                                                                                                                                                                         



ostensibly rebutted the domestic violence presumption, he became eligible for custody  

                                                                                                                                                                                                                                                                                                               



of J.T., subject to the court's findings and weighing of the best interests factors.  But the  

                                                                                                                                                                                                                                                                                                                                 



court could not ignore its finding that Jonathan had a history of perpetrating domestic  

                                                                                                                                                                                                                                                                                                          



                          54                       SeePresumption,rebuttablepresumption                                                                                                                       , B       LACK'S LAW DICTIONARY  (11th  



ed. 2019).   



                          55                       See AS 25.24.150(g).  

                                                                                  



                                                                                                                                                               -23-                                                                                                                                                       7433
  


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

violence nor could it ignore the underlying fact of his sexual abuse of Angelica, and both                                                                                             

facts have implications for the best interests analysis.                                                              56  



                              This oversightwas crucial tothecourt's analysis ofJ.T.'s bestinterests, and  

                                                                                                                                                                                         



it led the court to assign disproportionate weight to the best interests factors. The court  

                                                                                                                                                                                     



therefore abused its discretion by failing to consider these highly relevant facts.  We  

                                                                                                                                                                                        



reverse the  court's order granting sole custody to Jonathan and remand for further  

                                                                                                                                                                                



proceedings.  



                              On remand - if the superior court determines not to terminate Jonathan's  

                                                                                                                                                                         



parental rights pursuant to Angelica's petition under AS 25.23.180 - the court must  

                                                                                                                                                                                     



carefully apply the best interests factors consistent with our opinion.  Because the court  

                                                                                                                                                                                     

already found that Jonathan rebutted the presumption against custody,57  it must conduct  

                                                                                                                                                                               



a new best interests analysis that (1) properly contemplates Jonathan's sexual abuse of  

                                                                                                                                                                                            



Angelica, independent ofthefact that hehas rebuttedthedomesticviolencepresumption;  

                                                                                                                                                                    



               56             See, e.g.         ,  Kristina B. v. Edward B.                                , 329 P.3d 202, 207-10 (Alaska 2014)                                    



(discussing rebutting the presumption, and then evaluating domestic violence in the best                                                                                                

interests analysis by saying the court's findings regarding the presumption rebuttal were                                                                                             

adequate to cover the best interests analysis);                                                    Weinberger v. Weinmeister                                   , 268 P.3d 305,         

311   (Alaska   2012)   (applying   AS   25.24.150(c)(6)   domestic   violence   exception   to  

willingness to facilitate factor and need for finding that continuing relationship would                                                                                          

endanger health or safety of parent or child).                                       



               57             The superior court found that Jonathan rebutted the domestic violence  

                                                                                                                                                                             

presumption through a parenting course and ongoing therapy.  Because Angelica does  

                                                                                                                                                                                      

not challenge this on appeal, we leave intact the court's determination that Jonathan  

                                                                                                                                                                            

rebutted the presumption. We note that the legislature has not drawn distinctions among  

                                                                                                                                                                                 

different forms of domestic violence with regard to a parent's burden in rebutting the  

                                                                                                                                                                                         

domestic violence presumption.  We previously concluded that "the legislature did not  

                                                                                                                                                                                         

intend that completion of a batterers' intervention program should be the only way" to  

                                                                                                                                                                                            

rebut the presumption.  Stephanie F. v. George C., 270 P.3d 737, 752 (Alaska 2012).  

                                                                                                                                                                                                  

We observe that it is not self-evident that a batterers' intervention program or similar  

                                                                                                                                                                                 

treatment aimed at batterers is an appropriate response to a sexual abuse perpetrator.  

                                                                                                                                                                  



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

(2)  excludes  evidence  of  Angelica's  unwillingness  to  facilitate  a  relationship  between  



J.T.   and  Jonathan; and   (3)   carefully   analyzes  the  best   interests   factors   in   light   of  the  



                                                                                                                                                                                                                                        58  

legislature's  clear  intent  to  level  the  playing  field  for  victims  of  domestic  violence.                                                                                                                                           



V.                 CONCLUSION  



                                     We REVERSE the superior court's order denying Angelica's petition to  

                                                                                                                                                                                                                      



terminate Jonathan's parental rights.  We REVERSE the superior court's custody order.  

                                                                                                                                                                                                                                                      



We REMAND for further proceedings consistent with this opinion.  

                                                                                                                                                                       



                   58                 The court may have to consider J.T.'s best interests twice:                                                                                                                  first when  



deciding whether to terminate Jonathan's parental rights and again if it reaches the                                                                                                                                                     

motion to modify custody.                                                    As we discuss above, the question whether to sever J.T.'s                                                                                             

child-parent relationship with Jonathan is different and weightier than the design of an                                                                                                                                                    

appropriatecustodial                                       arrangement. Whiletherewill                                                         beoverlapbetween                                       thebest               interests  

factors, the court may weigh those factors differently in each analysis.                                                                                                     



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