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Jude M. v. State, Department of Health & Social Services

Supreme Court of Alaska

April 28, 2017

JUDE M., Appellant,

         Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, No. 3 AN-11 -00121 CN Andrew Guidi, Judge.

          Olena Kalytiak Davis, Anchorage, for Appellant.

          Laura Fox, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Anita L. Alves, Assistant Public Advocate and Richard Allen, Public Advocate, Anchorage, for Guardian Ad Litem.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.


          MAASSEN, Justice.


         A father appeals a superior court order granting long-term guardianship of his daughter to maternal relatives in another state. The father has a history of inappropriate sexual relationships and during four years of the child's life was incarcerated following a federal conviction for transportation of child pornography. The superior court ordered the guardianship based in part on expert testimony that the father could not yet be left alone with his daughter, given the state of his progress with sex offender treatment, and in part because his probation conditions prohibited unsupervised contact with anyone under 18.

         We conclude that the superior court had the statutory authority to establish a guardianship under these circumstances. But the court's finding that the daughter was likely to suffer serious emotional or physical harm if returned to her father's care was based in part on findings that lack the required basis in the expert testimony. We therefore remand for the superior court to consider whether the remaining findings are sufficient to support the guardianship order.


         A. Facts

         Dana was born in July 2008 to Jude and Marya M.[1] Marya has five other children, Dana's half-brothers and -sisters. Dana is an Indian child under the Indian Child Welfare Act (ICWA).[2]

         1. Dana's placement history

         Dana lived with both parents for her first nine months, but Jude then took her away because of his concerns about Marya's heavy drinking. Soon afterward the police began investigating Jude for possession of child pornography - explicit photographs of his teenaged half-sister. The police contacted the Office of Children's Services (OCS), which placed Dana with Jude's friends, the Carelawns. Jude visited Dana several days a week until his arrest in November 2009. Dana was then returned to her mother's custody and OCS closed its file. In December 2009 Jude pleaded guilty to the federal offense of transporting child pornography across state lines and was sentenced to 60 months in prison followed by five years of supervised release.

         Dana lived with her mother and half-siblings for about a year and a half. OCS opened this case in April 2011, when Marya left the children alone in an apartment. Dana was again placed with the Carelawns until July 2013, when OCS decided she should live with Marya's sister, Natalia Winsome, in another state. Although the Carelawns wanted to adopt Dana, Natalia's family was a priority placement under ICWA.[3] The superior court upheld OCS's transfer decision in February 2014 following a contested placement hearing, and OCS moved Dana out of state in late May to live with the Winsomes.

         While living with the Winsomes, Dana was sexually abused by Natalia's minor son Roland. When Dana told the Winsomes about the abuse in April 2015, they immediately took her to the hospital. Roland was arrested for sexual assault and removed from the home. At the time of the second termination trial Dana was still living with the Winsomes, and the entire family was participating in a state program for families suffering the effects of sexual abuse. Dana had received individual treatment as well.

         2. Jude's sexual history and treatment

         Jude has a history of inappropriate sexual relationships beginning in childhood and including sex with cousins, an ex-girlfriend of his father, a half-sister, and (more or less contemporaneously) the half-sister's mother, his former stepmother. Jude spent several years of his 60-month prison sentence at Devens Federal Medical Center in Massachusetts, which provides a voluntary program for sex-offender rehabilitation. There he was diagnosed with two paraphilic disorders: "hebephilia" because of his strong sexual attraction to teenaged girls and "incest" because of his relationship history and sexual fantasies.

         Jude successfully completed Devens's intensive sex-offender treatment program, and a risk assessment rated him as having a "Low-Moderate" risk of sexual recidivism. A Relapse Prevention Plan recommended that he "should have NO contact with any children under the age of 18 ... unless supervised by a responsible adult who is aware of [his] sex offense history." The Plan advised that if Jude were allowed to live with Dana he "should not be alone with his daughter at any time nor should he enter her bedroom" or "act as a chaperone for his daughter and her friends." In December 2013 Jude was relocated from Devens to a halfway house in Anchorage, from which he was released in May 2014. He continued treatment locally with Dr. Allen Blair, who discharged him in January 2015 because he had completed his treatment goals.

         B. Proceedings

         1. First termination trial

         Dana was adjudicated a child in need of aid in December 2011. OCS petitioned to terminate Jude's parental rights in August 2012 on the grounds that Jude would "not be released until 2014, and it is at best unclear if he will have resolved his history of sexual behavior against underage female relatives by then."[4]

         After hearing testimony in April 2014, the superior court found five of the six elements required for termination: (1) Dana was a child in need of aid due to concerns about Jude's sexual history; (2) Jude's troubling conduct had not been remedied; (3) OCS had made timely and reasonable efforts to provide family support services; (4) active efforts had been made to reunify the family; and (5) termination was in Dana's best interests.[5] But the court could not find beyond a reasonable doubt one of the elements required for termination: that returning Dana to Jude's care was likely to result in serious emotional or physical damage to her.[6] Without "[an] expert witness who had performed a specific diagnostic assessment of the risk posed by [Jude], " the court had "[a] reasonable doubt about [Jude]'s capacity to change, " which precluded a finding of likely harm. The court therefore denied termination.

         2. Second termination trial

         Jude and OCS could not agree on an appropriate permanency plan once Dana moved out of state to live with the Winsomes, and the superior court scheduled a second termination trial. At OCS's request the superior court agreed to consider the alternative of a long-term guardianship with the Winsomes. It heard evidence in October and November 2015.

         Dr. Richard Lazur, who had been retained by OCS to assess Jude, testified that Jude's risk of reoffense within a year was 3.2% and within five years was 5.9%. The superior court found that both Dr. Lazur and Dr. Blair, Jude's treating therapist, believed that Jude continued to pose "a small but significant risk" to Dana. Both experts "recommended a detailed transition program with safeguards to protect [Dana]" and that "any reintroduction should occur over a long period of time in a safe, therapeutically-controlled environment."

         The court again concluded that OCS had proven all but one element required for termination; it found that the likelihood of harm from Dana's return to Jude's care was proven by clear and convincing evidence but not beyond a reasonable doubt. The court found that "[a]ccording to Dr. Lazur, [Jude] has made outstanding progress toward recovery" and "the evidence [still] fails to show beyond a reasonable doubt that [Jude]'s conduct is unlikely to change." The court therefore denied termination for a second time.

         3. Guardianship order

         Having denied termination, the court turned to OCS's alternative request that Dana be placed in a long-term guardianship with the Winsomes. The court first determined that it was authorized to consider guardianship because Jude's parental rights had been suspended both by Dana's status as a child in need of aid and by the terms of Jude's probation, which prohibited unsupervised contact with Dana. The court made three findings required to support a guardianship order: (1) that active efforts were made and were unsuccessful; (2) that "leaving the child in the parent's custody would likely cause 'serious emotional or physical damage' "; and (3) "that appointment of a guardian would be in the child's best interest." The court appointed the Winsomes as Dana's guardians until she turns 18, giving them discretion over future contact between Dana and Jude, "guided by the therapeutic recommendations for [Dana]."

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


         "In child in need of aid cases, 'we review the trial court's factual findings for clear error and its legal determinations de novo.' "[7] "We will find clear error only when a review of the entire record leaves us 'with a definite and firm conviction that the superior court has made a mistake.' "[8] "[I]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence."[9] Thus, "[conflicting evidence is generally not sufficient to overturn a trial court's factual findings, and we will not reweigh evidence when the record provides clear support for a trial court's ruling."[10]

         "Whether a trial court's findings are consistent with the child in need of aid" or other applicable statutes "is a question of law that we review de novo."[11]"Statutory interpretation is also a question of law, "[12] for which we adopt "the rule of law that is most persuasive in light of precedent, reason, and policy."[13]

         "Whether the state complied with the 'active efforts' requirement of [ICWA] is a mixed question of law and fact."[14] "Whether a child would likely suffer serious physical or emotional harm if returned to a parent's custody is a question of fact."[15] We review for abuse of discretion the superior court's determination that guardianship is in the child's best interests, though we review any underlying findings of fact for clear error.[16] "In appointing a guardian, 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.' "[17]


         Jude's claims on appeal focus on the long-term guardianship order and fall into three main categories: (A) that the order exceeded the superior court's statutory authority, (B) that the court applied the wrong standard of proof for its finding of a likelihood of harm, and (C) that the evidence does not support the court's findings.

         A. The Superior Court Was Authorized To Establish A Guardianship Under AS 13.26.045.

         Alaska Statute 13.26.045 authorizes the superior court to "appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order." (Emphasis added.) Jude argues that the court lacked authority to establish a guardianship under this statute because his rights had not been terminated or suspended. He specifically challenges the court's reliance on Dana's CINA status as having "suspended" his rights, [18] arguing that he retained "residual rights" of parenting despite OCS's physical custody of Dana.[19] Alaska Statute 13.26.045 does not define "suspended"[20] and the parties dispute its meaning; we consider the meaning of a statutory term de novo.[21]

         It is true, as Jude contends, that the parent of a child in OCS custody retains "residual rights" unless and until all parental rights are terminated; these residual rights include "the right and responsibility of reasonable visitation, consent to adoption, consent to marriage, consent to military enlistment, [and] consent to major medical treatment."[22] But rights of custody are not included in those residual rights.[23] The question, therefore, is whether Jude's custodial rights were suspended while Dana was in OCS's custody.

         "When a child is committed under AS 47.10.080(c)(1) to the department, ... a relationship of legal custody exists" between OCS and the child, imposing on OCS the daily custodial responsibilities that would otherwise be the parent's.[24] In contrast, as the superior court explained, "[Jude] has neither the right of physical custody nor any day-to-day right of legal custody. He cannot take [Dana] to the park, make her a sandwich, or tuck her in at night." To "suspend" rights means to temporarily prevent their exercise.[25] Because Jude was prevented from exercising his "parental rights of custody" once OCS took custody of Dana, his parental "rights of custody" were suspended as that term is used in AS 13.26.045.[26]

         Jude argues that "[t]he logical extension" of this holding is that any child custody order granting "one parent sole legal and physical custody" suspends the noncustodial parent's rights. But the analogy to private child custody disputes is inapt, as demonstrated by the Arizona case on which Jude relies, Morales v. Glenn.[27] The parents in Morales had divorced, and the father was awarded sole custody of two minor children.[28] After the father died the superior court ordered the children returned to the mother, but a probate court simultaneously entertained a petition for guardianship brought by the paternal grandparents, who argued that the mother's custodial rights had been terminated by the award of sole custody to the father.[29] The Arizona Supreme Court held that the grandparents' guardianship petition should be dismissed.[30] It noted that the original custody decree "was silent as to the mother's fitness to have custody of the children, " that she had been granted reasonable rights of visitation, and that she "regained all rights of custody ... at the time of the death of the father . . . and actual custody by reason of the order of the [superior] court."[31] The court expressly rejected the idea that, absent express findings on the issue, an award of custody to one parent created a presumption that the other parent was unfit to have custody.[32]

         The opposite is true in the case of a child in need of aid. OCS has custody only because of a judicial determination that the parent has committed conduct or created conditions that put the child's welfare at risk.[33]

         Jude also finds support for his argument in a regulation, 7 Alaska Administrative Code (AAC) 5 6.3 70(b), which states in part that an agency may not place a child in a guardianship without having on hand, among other things, "evidence that... parental rights have been terminated or suspended by the court." Jude argues that every case to which subsection .370(b) applies involves a child that "has been, like Dana, adjudicated to be a child in need of aid, " so the regulatory requirement is superfluous if a CINA adjudication necessarily suspends parental rights. But as OCS points out, the provision applies to cases other than CINA cases and to agencies other than OCS, [34] and it simply identifies the authorization paperwork necessary for any such agency to proceed with a guardianship. The regulation does not purport to supplement the guardianship statutes by requiring an additional finding of termination or suspension.[35]

         In sum, because Jude's custodial rights had been suspended, the superior court did not err in concluding that it had the authority under AS 13.26.045 to appoint a long-term guardian for Dana.[36]

         B. The Guardianship Was Not A De Facto Termination That Triggered ICWA's Requirement That The Likelihood Of Harm Be Proven Beyond A Reasonable Doubt.

         Jude argues that even if the guardianship was statutorily authorized, it was a de facto termination of parental rights for which ICWA requires a higher standard of proof. ICWA prohibits termination absent proof "beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent... is likely to result in serious emotional or physical damage to the child."[37]Here, the superior court found a likelihood of harm only by the lesser standard of clear and convincing evidence, which is why it refused to terminate Jude's parental rights and ordered a long-term guardianship instead.

         ICWA does not separately address guardianships but it does define four types of "child custody proceeding[s]": (1) foster care placement, (2) termination, (3) preadoptive placement, and (4) adoptive placement.[38] Included in the definition of "foster care placement" is "any action removing an Indian child from its parent... for temporary placement in... the home of a guardian... where the parent... cannot have the child returned upon demand, but where parental rights have not been terminated."[39]The Winsomes' guardianship of Dana meets this definition: Dana is being kept from her father's home;[40] she will be placed temporarily[41] in the home of a guardian; Jude cannot have her returned upon demand; and Jude's parental rights have not been terminated.[42]

         In support of his argument that the guardianship effectively terminated his parental rights, Jude points to our decision in D.H. v. State.[43] In that case the State allowed three children in need of aid to move to Alabama with their foster family.[44] We held that "[a] termination of visitation rights exists not only where the state formally obtains a termination order but also where the state's decision as a practical matter precludes the parent from exercising his or her right of reasonable visitation."[45] Because the father was "unemployed and virtually penniless" and "lack[ed] the funds to call regularly, " we held that the out-of-state foster care arrangement "constitute[d] a de facto termination of [the father's] visitation rights."[46] Jude argues that if the foster care placement in D.H. qualified as a de facto termination, then "surely [the] more permanent and formal break of parental rights ... in this case" by the guardianship order must do so too.

         But the de facto termination in D.H. was of only one parental right, albeit an important one: the right of reasonable visitation. Whether the out-of-state placement constituted a de facto termination of all the father's parental rights was not at issue. In another case, Nelson v. Jones, we declined to find a de facto termination of all parental rights even where the superior court denied a father any visitation until he admitted that he had sexually abused one of his children.[47] We concluded that "the trial court's restriction on visitation [was] not, in effect, a termination of [the father]'s parental rights."[48]

         Jude also asserts that the guardianship order "ends OCS's custody over Dana" and "changes the legal standard" by which he can regain custody, because under AS 13.26.085, [49] in order to end the guardianship, he must now carry the burden of proving "that removing Dana from the Winsomes' care would be in Dana's best interests." But the fact that the guardianship modified Jude's legal rights is not enough to make it a "termination" under federal law. ICWA recognizes that any "foster care placement" modifies parental rights, in that "the parent... cannot have the child returned upon demand."[50] But as OCS points out, if Jude petitions the court for the guardians' removal, the outcome could be "the return of Dana to Jude - something that would not be possible if Jude's parental rights were terminated and Dana were adopted."[51]

         Because guardianship is a foster care placement under ICWA, the superior court was required to support the guardianship order "by clear and convincing evidence that [the father]'s continued custody of his children was likely to result in serious emotional or physical damage to them."[52] The court did not err by applying this standard when it ordered the guardianship for Dana.

         C. The Superior Court Did Not Err In Its Findings Of Active Efforts, But Its Findings As To Whether Those Efforts Succeeded And Whether Dana Faces Harm If Returned To Jude's Custody Lack The Required Expert Support.

         The superior court was required to make three factual findings to support the guardianship: (1) by clear and convincing evidence that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful";[53] (2) by clear and convincing evidence, supported by expert testimony, that "custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child";[54] and (3) by a preponderance of the evidence that the appointment of a guardian is in the child's best interests.[55] Jude argues that the court erred both because the evidence does not show that ICWA's requirement of "active efforts" was satisfied and because the court's "substantial harm" and "best interests" findings are not supported by the record. We agree in part.

         1. The superior court did not err in finding active efforts, but its finding that they were unsuccessful requires reconsideration on remand.

         Under ICWA, "[a]ny party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child . . . shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful."[56] "The determination of active efforts is done on a case-by-case basis."[57]"Although 'no pat formula exists for distinguishing between active and passive efforts, ' distinctions do exist."[58] "[A]ctive efforts require taking a parent through the steps of a plan and helping the parent develop the resources to succeed; drawing up a case plan and leaving the client to satisfy it are merely passive efforts."[59] "Whether OCS made active efforts to provide remedial and rehabilitative services designed to prevent the breakup of the Indian family is a mixed question of fact and law."[60]

         Jude argues on appeal that (a) the superior court should not have considered efforts provided by entities other than OCS; (b) considering only OCS's efforts, there was insufficient evidence that active efforts were made; and (c) active efforts, if made, were successful in rehabilitating him.

         a. The superior court did not err by considering efforts made by entities other than OCS.

         The superior court's active efforts finding relied in part on sex offender treatment provided by the federal treatment center in Devens. According to Jude, however, ICWA requires that OCS make all qualifying efforts itself; otherwise, he argues, OCS will be "incentiviz[ed] ... to act passively" while letting others carry the burden of rehabilitation, "which runs counter to ICWA's text and purpose." Because Jude's argument asks whether the superior court's findings complied with ICWA, we consider it de novo.[61]

         ICWA requires the party seeking a foster care placement to satisfy the court that "active efforts have been made";[62] it does not say who must make the efforts. We have approved superior courts' consideration of efforts made by outside entities such as the Alaska Department of Corrections, parole officers, and therapeutic courts.[63] We have also noted that "the practical circumstances surrounding a parent's incarceration - the difficulty of providing resources to inmates generally, the unavailability of specific resources, and the length of incarceration - may have a direct bearing on what active remedial efforts are possible."[64] In A.M. v. State, for example, we upheld the superior court's active efforts finding in part because of services provided by the Department of Corrections, concluding that "[the father]' s enrollment in the DOC programs necessarily reduced [OCS]'s role in providing active remedial efforts."[65]

         Although A.M. and other past cases have considered efforts made by various entities of the State of Alaska, [66] the rationale extends to services provided by others that OCS should not be required to duplicate. It is unrealistic to expect OCS to provide rehabilitative sex offender treatment to a federal prisoner, housed out of state, while that prisoner is already engaged in a federal program of intensive sex offender ...

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