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.
OPINION
MAASSEN, Justice.
I.
INTRODUCTION
A
father appeals a superior court order granting long-term
guardianship of his daughter to maternal relatives in another
state. The father has a history of inappropriate sexual
relationships and during four years of the child's life
was incarcerated following a federal conviction for
transportation of child pornography. The superior court
ordered the guardianship based in part on expert testimony
that the father could not yet be left alone with his
daughter, given the state of his progress with sex offender
treatment, and in part because his probation conditions
prohibited unsupervised contact with anyone under 18.
We
conclude that the superior court had the statutory authority
to establish a guardianship under these circumstances. But
the court's finding that the daughter was likely to
suffer serious emotional or physical harm if returned to her
father's care was based in part on findings that lack the
required basis in the expert testimony. We therefore remand
for the superior court to consider whether the remaining
findings are sufficient to support the guardianship order.
II.
FACTS AND PROCEEDINGS
A.
Facts
Dana
was born in July 2008 to Jude and Marya M.[1] Marya has
five other children, Dana's half-brothers and -sisters.
Dana is an Indian child under the Indian 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.
III.
STANDARDS OF REVIEW
"In
child in need of aid cases, 'we review the trial
court's factual findings for clear error and its legal
determinations de novo.' "[7] "We will find clear
error only when a review of the entire record leaves us
'with a definite and firm conviction that the 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]
IV.
DISCUSSION
Jude's
claims on appeal focus on the long-term guardianship order
and fall into three main categories: (A) that the order
exceeded the superior court's statutory authority, (B)
that the court applied the wrong standard of proof for its
finding of a likelihood of harm, and (C) that the evidence
does not support the court's findings.
A.
The Superior Court Was Authorized To Establish A
Guardianship Under AS 13.26.045.
Alaska
Statute 13.26.045 authorizes the superior court to
"appoint a guardian for an unmarried minor if all
parental rights of custody have been terminated or
suspended by circumstances or prior court order."
(Emphasis added.) Jude argues that the court lacked authority
to establish a guardianship under this statute because his
rights had not been terminated or suspended. He specifically
challenges the court's 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
...