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

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. H.C.S. v. Community Advocacy Project of Alaska, Inc. (03/08/2002) sp-5548

H.C.S. v. Community Advocacy Project of Alaska, Inc. (03/08/2002) sp-5548

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.  Readers   are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


H.C.S.,                       )
                              )    Supreme Court No. S-9783
             Appellant,            )
                              )     Superior Court No. 4FA-99-185
     v.                       )
                              )    O P I N I O N
PROJECT OF ALASKA, INC., as   )    [No. 5548 - March 8, 2002]
Guardian and Conservator of        )
H.L.S.,                       )
             Appellee.             )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Ralph R. Beistline, Judge.

          Appearances:  Edward R. Niewohner,  Niewohner
          & Associates, P.C., Fairbanks, for Appellant.

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

          EASTAUGH, Justice.


          I.   Without objection from the family, the superior court

appointed  a  corporation to be the guardian and  conservator  of

H.L.S., an adult.  Six months later, one of the wards adult sons,

H.C.S., asked the court to remove the corporation and appoint him

guardian  and  conservator.   Because  H.C.S.  demonstrated  that

circumstances  had  changed  since the  corporations  uncontested

appointment,  we  vacate the order denying  H.C.S.s  modification

petition  and remand for a determination whether it would  be  in

H.L.S.s best interests to remove CAPA and appoint H.C.S. guardian

and  conservator.  In making this determination the court  should

consider   the   substantive  values  underlying  the   statutory

priorities for appointments of guardians and conservators.


          H.L.S.  was  born  in  1924; his family  has  lived  in

Fairbanks for more than fifty years and he has an extended family

there.   Alzheimers Disease and dementia caused H.L.S. to  suffer

lapses  in  memory  and  judgment.  In April  1999  his  children

petitioned   the  superior  court  to  appoint  a  guardian   and

conservator for him.  The court visitor, Alison Seymour, reported

that  H.L.S.  had previously expressed a preference  that  if  he

should need help, it be provided by one of his sons, H.C.S.   His

examining  physician reported that H.L.S. had indicated  that  he

was  most  comfortable  with  having  H.C.S.  in  charge  of  his

financial  affairs.   In July the court appointed  H.L.S.s  adult

sons  T.B. and H.C.S. co-guardians; T.B. was the primary guardian

and  H.C.S.  was the secondary guardian.  The court also  ordered

the  wards family to nominate a conservator.  When the family was

unable  to do so, the court appointed Community Advocacy  Project

of Alaska, Inc. (CAPA) H.L.S.s conservator.

          In  early  October 1999 the court visitor informed  the

superior  court  that Adult Protective Services,  CAPA,  and  the

Fairbanks  Police Department had reported concerns to  her  about

the ward.  The court visitor told the court that he was wandering

the  Fairbanks  streets improperly dressed for cold  weather  and

that  his apartment had a sewage leak.  She thought that lack  of

follow through by the guardian regarding housing and finances was

causing personal danger to H.L.S. and danger of further waste  or

dissipation  of his finances and assets.  She asked the  superior

court  to schedule a hearing to consider appointing CAPA guardian

in place of T.B. and H.C.S.

          The superior court conducted a hearing on October 8 and

heard  from  the  court  visitor, the ward  himself,  and  family

members,  including  T.B.  and H.C.S.;  it  then  appointed  CAPA

H.L.S.s guardian without objection.

          The wards ex-wife, Ms. H.S., wrote the superior court a

short letter several weeks later asking the court to remove  CAPA

and  appoint her H.L.S.s guardian.  The court conducted a hearing

on her request on November 29; attending were Ms. H.S., the wards

attorney (Robert Noreen), the court visitor, and Candy Carroll of

CAPA.   The  court visitor suggested that Ms. H.S. might  have  a

conflict of interest because she claimed to have an interest in a

building  H.L.S. owned.  H.L.S.s attorney asked  that  Ms.  H.S.s

request  be  denied.  The court found that it  was  not  then  in

H.L.S.s  best interest to change guardians and denied  Ms.  H.S.s


          In March 2000 H.C.S., through counsel, filed a petition

asking the superior court to modify and terminate the appointment

of  CAPA  and to appoint him as H.L.S.s guardian and conservator.

H.C.S.   alleged   that   CAPA   had   caused   H.L.S.   to    be

institutionalized in Sitka, rather than Fairbanks  or  Anchorage,

thus  prohibiting  or  inhibiting  family  visits  and  emotional

support.   H.C.S.  further alleged that CAPA drilled  and  opened

[H.C.S.]s  safety deposit box rather than [H.L.S.]s  and  .  .  .

otherwise  assumed  control of other family members  possessions.

In  late  March  CAPA asked for permission to file  a  bankruptcy

petition for H.L.S.  The superior court initially approved  CAPAs

request  to file a bankruptcy petition but rescinded its approval

when H.C.S. sought reconsideration on the ground the petition  to

remove CAPA was pending.

          At a May 12, 2000 closed hearing on H.C.S.s petition to

replace CAPA, the superior court heard from CAPA's Candy Carroll,

the  court  visitor,  H.L.S.'s attorney,  H.C.S.s  attorney,  and

H.C.S. himself.  The arguments and comments informed the court of

the  continued  need  for a guardian and conservator  to  protect

H.L.S.   and  his  assets;  the  court  also  heard  of  disputes

concerning  the  extent of H.L.S.s assets,  the  desirability  of

filing  for  bankruptcy, the familys willingness and  ability  to

care  for H.L.S., the extent to which CAPAs conduct had disrupted

the  family  by moving H.L.S. from Fairbanks to Sitka three  days

before Thanksgiving 1999, and the expense of CAPAs services.

          The  court denied H.C.S.s petition on May 22.  It found

that   CAPA  has  been proceeding in good faith to  protect  both

[H.L.S.] personally and his assets.  It is currently in [H.L.S.]s

best  interest  that CAPA continue in its role and  continue  its

efforts   to  provide  [H.L.S.]  with  long-term  care.    H.C.S.

unsuccessfully moved for reconsideration.  He now appeals.


          H.C.S.  argues  that it was an abuse of  discretion  to

deny  his  petition  to  change  his  fathers  guardianship   and

conservatorship  to  himself  without  making  fact  findings  to

justify   deviating  from  statutory  priorities   favoring   his

appointment.  Relying on AS 13.26.145 and AS 13.26.210, he argues

that  the  court  should  have  removed  CAPA,  an  institutional

stranger, and appointed himself,  absent findings that  he  would

be unfit as a guardian and conservator.

     A.   Standard of Review

          A.   The initial selection of a guardian or conservator for an

incapacitated person is committed to the sound discretion of  the

superior   court.1   We  review  that  decision  for   abuse   of

discretion.2  Although the issue has not previously  come  before

us,  we  think  it  appropriate to review  an  order  denying  or

granting a request to remove a guardian or conservator under  the

same  deferential  standard.3   The  superior  court  abuses  its

discretion  if it considers improper factors, fails  to  consider

statutorily mandated factors, or assigns too much weight to  some

factors.4   We  review the interpretation of a statute  de  novo,

adopting  the  rule of law that is most persuasive  in  light  of

precedent, reason, and policy.5

     B.   Appointing Guardians and Conservators

          The  legislature has specified selection priorities for

          persons seeking to be appointed guardians or conservators.

Alaska  Statute  13.26.145(d)  establishes  the  priorities   for

qualified persons seeking appointment as guardians:

          [Q]ualified   persons   have   priority   for
          appointment  as  guardian  in  the  following
          (1)    a   person,  association,  or  private
          nonprofit   corporation  nominated   by   the
          incapacitated person, if at the time  of  the
          nomination the incapacitated person  had  the
          capacity  to  make  a reasonably  intelligent
          (2)  the spouse of the incapacitated person;
          (3)    an  adult  child  or  parent  of   the
          incapacitated person;
          (4)   a  relative of the incapacitated person
          with   whom  the  incapacitated  person   has
          resided  for more than six months during  the
          year before the filing of the petition;
          (5)    a   relative   or   friend   who   has
          demonstrated a sincere, longstanding interest
          in the welfare of the incapacitated person;
          (6)    a  private  association  or  nonprofit
          corporation  with a guardianship program  for
          incapacitated persons;
          (7)  the public guardian.
          Likewise,  AS  13.26.210(a) establishes the  priorities

for qualified persons seeking appointment as conservators:

          The  following  are entitled to consideration
          for appointment in the order listed:
          (1)  a conservator, guardian of property,  or
          other  like fiduciary appointed or recognized
          by   the  appropriate  court  of  any   other
          jurisdiction  in  which the protected  person
          (2)   an  individual or corporation nominated
          by  the  protected  person if  the  protected
          person is 14 or more years of age and has, in
          the  opinion of the court, sufficient  mental
          capacity to make an intelligent choice;
          (3)  the spouse of the protected person;
          (4)  an adult child of the protected person;
          (5)   a parent of the protected person, or  a
          person  nominated by the will of  a  deceased
          (6)   any  relative  of the protected  person
          with  whom  the protected person has  resided
          for more than six months before the filing of
          the petition;
          (7)  a person nominated by the person who  is
          caring   for  or  paying  benefits   to   the
          protected person.
          The  legislature anticipated justifiable deviation from

these  priorities.  As to guardians, the legislature  adopted  AS

13.26.145(e).  It provides that the priorities established in (d)

of  this section are not binding, and the court shall select  the

person,  association,  or  nonprofit  corporation  that  is  best

qualified  and  willing  to  serve.   (Emphasis  added.)   As  to

conservators, the legislature adopted AS 13.26.210(b).  It states

that  the  court, for good cause, may pass over a  person  having

priority  and  appoint  a  person  having  less  priority  or  no

priority.  (Emphasis added.)

          Both    appointment    statutes   express    equivalent

preferences.   Both  prefer persons nominated  by  the  protected

party  to  other  persons.  Both generally  prefer  close  family

members  to  distant family members, and family members  to  non-

family  members.  The least favored applicants are those  persons

or  entities most distant from the ward.  Both statutes give  the

appointing   court   discretion   to   override   the   statutory

preferences.   Notwithstanding the  priorities,  the  court  must

select  the  best  qualified guardianship  applicant  willing  to

serve.6   And  it  may deviate from the statutory priorities  for

good cause in selecting a conservator.7

          The   Alaska  Probate  Rules  specify  some  procedures

governing  guardianships  and  conservatorships.   Of  particular

interest  to  selection are Probate Rules 16(a) and  17(a).   The

former  provides that a petition for guardianship must state  the

priority  of  the nominee under AS 13.26.145 and, if  known,  the

names  and addresses of any person with a higher priority.8   The

latter  provides that a petition for conservatorship  must  state

the priority of the nominee under AS 13.26.210 and, if known, the

names and addresses of any person with a higher priority.9  These

provisions help advance the statutory appointment priorities.

          The   court   initially  selected   CAPA   as   H.L.S.s

conservator  with  the familys consent and substituted  CAPA  for

          T.B. and H.C.S. as H.L.S.s guardians, again without objection by

the  family.   Because CAPAs appointments were  uncontested,  the

superior  court had no reason then to determine whether deviating

from the statutory priorities was justified.  It therefore had no

reason  to determine whether CAPA was best qualified to serve  as

guardian10   i.e., better qualified than an applicant  of  higher

priority   or  whether  there  was good  cause  to  appoint  CAPA

conservator over another applicant with higher priority.11  H.C.S.

does  not claim that the superior court abused its discretion  in

initially appointing CAPA guardian and conservator.

     C.   Modifying Appointments of Guardians or Conservators

          A.   The legislature adopted statutes that discuss removal of

guardians  and  conservators.12  These removal  statutes  do  not

purport  to  be  exhaustive or comprehensive  in  describing  the

grounds  for removal or the procedure to be followed when removal

is sought.13

          Thus,  AS 13.26.125 appears to deal with only  some  of

the specific circumstances that might warrant removing a guardian

and  appointing  a successor.  This section does  not  contain  a

generally  applicable substantive removal standard such  as  good

cause.   Alaska Statute 13.26.125(a) provides that  a  court  may

remove a guardian and appoint a successor if it determines that a

less restrictive guardianship plan . . . would assist the ward in

meeting  essential requirements for physical health and safety.14

This  subsection  is  inapplicable here, because  H.C.S.  is  not

proposing  a  less restrictive plan.  Alaska Statute 13.26.125(e)

addresses  other  specific  reasons for  removal,  but  they  are

equally  inapplicable, because H.C.S. is not claiming  that  CAPA

placed  H.L.S.s safety in imminent danger.  Likewise, subsections

.125(b)  and (d) do not apply here because H.C.S. did  not  claim

that  H.L.S. is no longer incapacitated or had expressed a desire

for a change in guardianship.15

            Because  other  circumstances that  might  justify  a

guardians removal in a given case can be readily imagined, it  is

          unlikely the legislature intended AS 13.26.125 to prescribe the

exclusive grounds for removal.

          Alaska   Statute   13.26.235   provides   simply   that

conservators  may  be  removed for good  cause.16   It  does  not

elaborate  further,  and  unlike  section  .125,  does  not  list

specific grounds for removal.

          We  conclude  that  the two removal  statutes  did  not

prevent  the superior court from removing and replacing  CAPA  as

guardian and conservator.

          1.   A two-part analysis should apply to petitions to remove or
               replace guardians or conservators.
          1.   Neither section .125 nor section .235 specifies any

procedure for seeking removal.  Nor do the Alaska Probate Rules.17

          We recognize the potential for disputes over appointing

guardians   and   conservators  and  efforts  to   remove   them.

Litigation  over such matters can be contentious and can  disrupt

family relationships already strained by the wards circumstances.

Extended  or  repeated  litigation over removal  is  costly  both

emotionally  and  financially.  We  are  reluctant  to  encourage

serial   disputes  should  applicants  with  successively  higher

priority  under  the  appointment statutes  petition  to  replace

existing guardians and conservators.  But we also recognize  that

families  may  have difficulty in dealing with a  family  members

incapacity,  and  that  persons with statutory priority  may  not

initially  be able or willing to take on the responsibilities  of

guardian  or conservator.  In such cases, it may be essential  to

appoint  a  professional.  That initial  appointment  should  not

altogether  foreclose qualified family members from later  asking

the court to appoint them in place of the professional.

          The   procedure  for  modifying  child  custody  awards

provides a useful analytical model.  Child custody is awarded  in

accordance with the childs best interests.18  Likewise, guardians

for  incapacitated persons are appointed to promote  and  protect

the  well-being of the person.19  Conservators are appointed  for

the  protection of those who, through incapacity,  cannot  manage

          their property and affairs effectively.20  The legislature has

adopted  a  two-part  test for modifying  child  custody  awards.

Alaska  Statute 25.20.110(a) provides that [a]n award of  custody

of  a child . . . may be modified if the court determines that  a

change  in  circumstances requires the modification of the  award

and  the  modification  is in the best interests  of  the  child.

Thus,  the  non-custodial  parent  must  first  demonstrate  that

circumstances have changed significantly since entry of the prior

custody  order.21   Requiring this threshold showing  of  changed

circumstances  has  the  purpose of  discourag[ing]  discontented

parents from continually renewing custody proceedings. 22

          We   think   an  equivalent  requirement   of   changed

circumstances is desirable when there is a dispute about changing

a  guardian or conservator, to minimize repeated guardianship  or

conservatorship  contests.  Therefore,  in  seeking  a  contested

change  of  the guardian or conservator, a petitioner must  first

show that the circumstances of the ward, guardian, or conservator

have  changed  materially since the guardian or  conservator  was


          Once the petitioner demonstrates changed circumstances,

the  court must decide whether the existing appointment is in the

wards  best  interests.  This best interests  determination  will

require the court to take into account the closeness of the wards

relationships  to  the  existing and  prospective  guardians  and

conservators.   This  inquiry  gives weight  to  the  substantive

values  that  apparently  underlie the statutory  priorities  for

appointing guardians and conservators.24

          The  length  and quality of existing appointments  will

often  also  be  relevant  to the best  interests  determination.

While  the  material circumstances in any given dispute  will  be

case-specific,  disrupting  the  wards  relationship   with   the

existing  guardian  or  conservator  may  raise  concerns   about

continuity and stability analogous to equivalent concerns in  the

child  custody  context.25  Likewise, if a  change  would  likely

          affect the wards physical placement, the extent to which the ward

has  formed relationships with caregivers or others in the  wards

present  living arrangement may be relevant.  Other circumstances

may also be relevant in particular cases.

          2.   H.C.S.s petition

          H.C.S.  petitioned for removal of CAPA as guardian  and

conservator and sought his own appointment.  We conclude that  he

demonstrated changed circumstances as a matter of law.

          H.C.S.s  petition  and oral presentation  alleged  that

CAPAs  abrupt  relocation of his father from Fairbanks  to  Sitka

three days before Thanksgiving 1999  effectively cut off personal

contact  with his fathers extended family in Fairbanks and  other

African-Americans  generally.26   This  allegation   might   have

permitted an inference that H.C.S. would have either avoided such

a  move, minimized its impact, or made quicker efforts than  CAPA

to  resettle his father in Fairbanks (or Anchorage, where  H.C.S.


          H.C.S.  also  alleged that CAPAs services are  draining

H.L.S.s  modest estate, which was alleged to be on  the  edge  of

bankruptcy when this appeal was commenced.  H.C.S., in  contrast,

claimed  he  would  not charge the estate  to  perform  the  same


            We acknowledge that at least some of these assertions

were  in  dispute.  For example, had it reached  the  issue,  the

court might have found that, based on information offered at  the

May  12,  2000 hearing, H.C.S. could not have achieved  a  better

placement  than CAPA.  But taken as a whole, H.C.S.s  allegations

demonstrated a significant change of circumstances, and therefore

entitled  H.C.S.  to an evidentiary hearing and  a  determination

whether CAPA should remain the guardian and conservator.

          Moreover,  H.C.S. is a statutorily preferred  applicant

who  has  significantly  higher priority  than  CAPA  under  both

appointment  statutes.  He correctly argues that, as his  fathers

adult  child,  he has priority over CAPA under AS 13.26.145(d)(3)

          and AS 13.26.210(a)(4).27  And before CAPA was appointed guardian

and  conservator,  his father had expressed a preference  to  the

court  visitor and his physician that H.C.S. take care of him  if

needed  and  that H.C.S. manage his affairs.  H.L.S.s preference,

if  still  valid,  would  also  give  H.C.S.  priority  under  AS

13.26.145(d)(1)  and  AS  13.26.210(a)(2).   Notwithstanding  his

priority,  H.C.S.  did not oppose CAPAs appointments,  and  CAPAs

appointments  were  uncontested. H.C.S.s present  willingness  to

serve  is  a  change  in circumstances since the  time  CAPA  was

appointed without contest.  This creates a dispute that  did  not

exist  when  CAPA  was appointed. The superior  court  was  never

previously  asked  to  give effect to the  statutory  appointment

priorities or decide whether to deviate from them.28

          Because  H.C.S.  demonstrated  a  material  change   of

circumstances, it was necessary to consider whether it was in the

wards best interests to remove CAPA and replace it with H.C.S..

          The  superior  court promptly conducted  a  hearing  at

which  all interested parties or persons were heard, although  no

formal testimony was offered.29  We agree with H.C.S.s argument on

appeal  that  the  hearing failed to address  several  unresolved

factual disputes about CAPAs treatment of H.L.S. and his assets.

          The  order denying H.C.S.s petition found that CAPA has

been proceeding in good faith to protect both [H.L.S.] personally

and his assets.  It is currently in [H.L.S.]s best interests that

CAPA  continue  in its role and continue its efforts  to  provide

[H.L.S.]  with  long-term  care.  We  think  these  findings  are

insufficient to resolve the best interests inquiry.

          First,  the  finding of CAPAs good faith is  of  little

relevance here. We assume that a corporate professional  guardian

and  conservator would be altogether disqualified if it were  not

acting  in  good  faith toward the ward; this factor  has  little

bearing  on the wards best interests or the statutory priorities.

And  the essence of H.C.S.s petition was not that CAPA was acting

in  bad  faith,  but  that CAPA was not  caring  for  his  father

          appropriately or efficiently.

          Second,  the  finding that it was  in  the  wards  best

interests  that CAPA continue as his guardian and conservator  is

conclusory  and  does not allow meaningful  review  in  light  of

H.C.S.s specific allegations.  It was certainly arguable from the

information  heard  by the superior court at  the  May  12,  2000

hearing  and  at earlier hearings that CAPA was a  better  choice

than  H.C.S.  But no findings discussed the relative capabilities

of  CAPA  and H.C.S. to care for H.L.S. and be his guardian.   No

findings  found  that CAPAs capabilities sufficiently  outweighed

H.C.S.s  so as to justify the courts departure from the statutory

preferences  set  out  in AS 13.26.145.   Likewise,  no  findings

discussed  their  relative  abilities to  manage  H.L.S.s  assets

efficiently.   Based on the arguments made at the  May  12,  2000

hearing,  there was a material and genuine dispute about  whether

it  was necessary for H.L.S. to declare bankruptcy.  The superior

court  seemingly concluded that it was necessary  for  H.L.S.  to

declare  bankruptcy,  but  even if it were  appropriate  to  sell

H.L.S.s  real property to care for him, that would not mean  that

CAPA could provide that care more efficiently or less expensively

than H.C.S.

          Finally,  there  is no indication the court  considered

the relative closeness of H.L.S.s relationships with CAPA and his

son in making its best interests finding.30

          We  therefore  remand  for further findings  consistent

with this opinion.

          Because only H.C.S. has filed a brief on appeal and the

parties  did  not  seem  to discuss in the  superior  court  what

factors  might  be  relevant in deciding  whether  H.C.S.  should

replace  CAPA,  we decline to attempt to list all  considerations

that  may  be relevant on remand.  Also, circumstances  may  have

changed  since this appeal was filed.  But we do note one  factor

that is potentially relevant:  the wards need for continuity  and

stability.  That factor may bear on who is best qualified  to  be

          guardian and whether there is good cause to have a conservator

who  is  of  lower priority than H.C.S.  H.L.S. may  have  formed

relationships with persons providing care to him or with whom  he

has  come  into  contact in his present living arrangement.   The

record  indicates  his most recent placement  was  in  the  Sitka

Pioneer Home.  It may have changed since.

          H.C.S. satisfied his burden of demonstrating materially

changed  circumstances.  But who bears the burden  regarding  the

wards  best  interests on remand?  A motion  to  modify  a  child

custody  order again provides an apt model.  We conclude  that  a

party  asking the court to modify an order appointing a  guardian

or  conservator normally has the burden of demonstrating that the

wards  best interests justify the modification.31  Because  there

was no contest between CAPA and any other applicant when CAPA was

appointed,  the  superior court made no best  qualified  or  good

cause  findings bearing on the selection and justifying deviation

from the statutory priorities.  It could therefore be argued that

CAPA  should have the burden of demonstrating that the wards best

interests  justify  CAPAs  retention.  But  the  present  dispute

concerns   removal  of  a  guardian  and  conservator  previously

appointed,  and we think placing the burden on the party  seeking

to  maintain the status quo would unduly promote instability  and

encourage  removal  motions  by  persons  with  higher  statutory

priority.   Placing  the  burden  on  movants  will  not  prevent

modification when it is in the wards best interest.  And  if  all

other  things are equal, it would seem that a movant like H.C.S.,

whose  relationship to his father is much closer than CAPAs,  can

readily  establish  that  modification  is  in  the  wards   best



          For  these  reasons, we REVERSE the denial  of  H.C.S.s

petition and REMAND for further proceedings consistent with  this


     1    E.g., In re Estate of Romberg, 942 S.W.2d 417, 419 (Mo.
App.  1997); see also 39 Am. Jur. 2d Guardian and Ward  40 (1999)
([T]he  selection of a guardian is a matter committed largely  to
the  discretion of the appointing court, whose decision will only
be  interfered  with on appeal in the case of a  clear  abuse  of
discretion.  (citations omitted)); cf. Veazey v. Veazey, 560 P.2d
382,  385  (Alaska 1977) (holding that trial court has discretion
to  appoint  guardian ad litem), overruled on  other  grounds  by
Dievert v. Oseira, 628 P.2d 575, 579 (Alaska 1981).

     2    39 Am. Jur. 2d Guardian and Ward  40.

     3     See  S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985)
(reviewing  modification of child custody order  under  abuse  of
discretion standard).

     4    Id. (citation omitted).

     5    Sosa v. State, 4 P.3d 951, 953 (Alaska 2000) (citations

     6    AS 13.26.145(e).

     7    AS 13.26.210(b).

     8    Alaska Probate Rule 16(a) provides:

          A  petition for guardianship must contain the
          information required by AS 13.26.105(b).  The
          petition  must be verified by the  petitioner
          or  signed  by  an attorney representing  the
          petitioner.   The  petition  must  state  the
          priority  of  the nominee under AS  13.26.145
          and, if known, the names and addresses of any
          person with a higher priority.
     9    Alaska Probate Rule 17(a) provides:

          A  petition for conservatorship must  contain
          the  information required by AS 13.26.180(b).
          The   petition  must  be  verified   by   the
          petitioner   or   signed   by   an   attorney
          representing the petitioner.  A petition  for
          conservatorship of a minor must state who has
          legal  custody of the minor and the birthdate
          of  the  minor.  The petition must state  the
          priority  of  the nominee under AS  13.26.210
          and, if known, the names and addresses of any
          person with a higher priority.
     10    See AS 13.26.145(e).

     11    See AS 13.45.210(b).

     12     AS  13.26.125  (addressing removal of  guardian);  AS
13.26.235 (addressing removal of conservators).  H.C.S.  has  not
discussed either of these statutes on appeal.  Nor does it appear
that  he discussed them in the superior court.  His petition  for
modification   cited   AS  13.26.125  without   discussing    its

     13     The Alaska Probate Rules do not specify the procedure
for a removal petition.

     14    AS 13.26.125 provides:

          Removal or resignation of guardian; change in
          or termination of guardianship.
               (a)    On  petition  of  the  ward,  the
          guardian,  or  any person interested  in  the
          wards  welfare, the court may (1) review  and
          amend  a  decision of a guardian; or  (2)  if
          alternatives  that are less restrictive  than
          guardianship  or  less restrictive  than  the
          existing  guardianship plan would assist  the
          ward  in  meeting essential requirements  for
          physical   health  and  safety,  modify   the
          provisions  of  its order to  (A)  amend  the
          guardianship plan or the responsibilities  of
          the  guardian;  (B)  remove  a  guardian  and
          appoint  a  successor; or (C)  terminate  the
          guardianship.   On petition of the  guardian,
          the  court may accept a resignation and  make
          any other order that may be appropriate.
               (b)   The  ward,  the guardian,  or  any
          person  interested in the wards  welfare  may
          petition  for an order that the  ward  is  no
          longer    incapacitated    or    no    longer
          incapacitated to the same extent as the  ward
          was  when the original guardianship order was
          made  or  when  the  court last  amended  the
          guardianship  order,  and  for   removal   or
          resignation  of the guardian, termination  of
          the   guardianship,  or  a  change   in   the
          responsibilities of the guardian.  A  request
          for this order may be made by informal letter
          to  the  court  or judge and any  person  who
          knowingly  interferes  with  transmission  of
          this  kind of request to the court  or  judge
          may be held in contempt of court.
               (c)    Before   removing   a   guardian,
          changing   the   guardians  responsibilities,
          accepting  the resignation of a guardian,  or
          ordering that a wards guardianship be changed
          or  terminated, the court, following the same
          procedures  to  safeguard the rights  of  the
          ward  as  apply to a petition for appointment
          of   a   guardian  and  applying  the   least
          restrictive alternative necessary to meet the
          needs  of  the  ward after  consideration  of
          alternatives  to guardianship  services,  may
          send  a  visitor  to  the  residence  of  the
          present  guardian and to the place where  the
          ward  resides  or  is  detained,  to  observe
          conditions  and  report  in  writing  to  the
               (d)  If at any time the ward requests or
          indicates  to the guardian or to  the  agency
          responsible  for  the  wards  care   or   its
          employee  that the ward desires a  change  in
          guardianship,  the  guardian  or  the  agency
          providing care shall inform the court of  the
          request or indication.
               (e)   If the guardian dies, or if on the
          basis  of a petition filed under this section
          or  a  report or other information, there  is
          probable cause to believe a guardian  is  not
          performing   the  guardians  responsibilities
          effectively  and there is an imminent  danger
          that  the  physical health or safety  of  the
          ward  will  be seriously impaired, the  court
          shall  take  whatever action is necessary  to
          protect the ward, including the dismissal  of
          the  guardian and appointment of a  temporary
          guardian without a hearing.
     15     H.C.S.  does  rely on a preference expressed  by  his
father, but his father expressed that preference before CAPA  was

     16     AS  13.26.235  provides:   The  court  may  remove  a
conservator  for good cause, upon notice and hearing,  or  accept
the  resignation of a conservator.  After death, resignation,  or
removal,   the   court  may  appoint  another   conservator.    A
conservator so appointed succeeds to the title and powers of  the
conservators predecessor.

     17    See Alaska R. Prob. P. 16, 17.

     18    AS 25.24.150(c).

     19    AS 13.26.090.

     20    AS 13.26.165.

     21     Garding  v. Garding, 767 P.2d 183, 185 (Alaska  1989)
(citing S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985)).

     22    Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990)
(quoting King v. King, 477 P.2d 356, 360 (Alaska 1970)).

     23     Our survey of statutes elsewhere regarding removal or
modification of guardians reveals one jurisdiction that  requires
a  change in circumstances before removal.  Ga. Code Ann.  29-5-9
(2)  (allowing  modification or termination of guardianship  upon
showing  of  significant  change  in  circumstances  of  ward  or
guardian);  In re Pitts, 463 S.E.2d 550, 550-51 (Ga.  App.  1995)
(affirming  dismissal  of  petition  to  remove  guardian   where
petitioners  factual recitation [did] not evidence a  significant
change   in  the  extent  of  her  mothers  incapacity   or   her
circumstances since the appointment of her guardian).

     24     See  AS  13.26.145(d)  (guardians);  AS  13.26.210(a)
(conservators);   see   also  supra  Part   III.B.   (identifying
equivalent preferences under each statute).

     25    See, e.g., AS 25.24.150(c)(5) (requiring consideration
of  the  length  of  time  the  child  has  lived  in  a  stable,
satisfactory  environment  and the  desirability  of  maintaining

     26    See Acevedo v. Liberty, 956 P.2d 455, 458 (Alaska 1998)
(custodial   parents  in-state  move  of  considerable   distance
constituted change in circumstances sufficient to warrant hearing
on modification of custody order).

     27     H.C.S. is three categories above CAPA on the guardian
appointment  priority  list.  AS 13.26.145(d).   H.C.S.  is  also
three  categories above CAPA on the conservator list if  CAPA  is
considered (7) a person nominated by the person who is caring for
. . . the protected person. AS 13.26.210(a).

     28     The  superior court had previously denied  Ms.  H.S.s
October  1999 pro se petition on best interests grounds,  finding
that  CAPA  was  doing  an  excellent job  dealing  with  a  very
difficult  situation.  In so ruling, the court did not  refer  to
the  statutory priorities or the statutory grounds for  deviating
from them.

     29    H.C.S. does not argue that the hearing was procedurally

     30    See supra note 24 and accompanying text.

     31     Petitioners  seeking modification  of  child  custody
orders  bear  the  burdens of proof and  persuasion  both  as  to
changed circumstances and best interests.  E.g., Lee v. Cox,  790
P.2d  1359,  1361 (Alaska 1990) (stating that burden is  on  non-
custodial  parent to demonstrate that the changed  circumstances,
considered in conjunction with other relevant facts bearing  upon
the  childs  best interests, warrant modification of the  custody
decree).   This is also true where the initial custody award  was
entered  by  stipulation rather than by contest.  E.g.,  Garding,
767  P.2d  at  185 (holding that non-custodial parent  still  had
burden  of proving changed circumstances where parents stipulated
to  initial custody agreement); Lashbrook v. Lashbrook, 957  P.2d
326,  329 (Alaska 1998) (holding that movant still had burden  of
proving  modification was in childs best interests where  parties
stipulated  to  initial custody agreement).  By  analogy,  H.C.S.
should  bear  both  burdens on remand even though  CAPAs  initial
appointments were not contested.