as: 779 P.2d 1229)
Court of Alaska.
of Alaska, Appellee.
Sept. 15, 1989.
Tricia Collins, Juneau, for appellant.
Janine J. Reep, Asst. Atty. Gen., and Douglas B. Baily,
Atty. Gen., Juneau, for appellee.
Barbara T. Walker, Juneau, Guardian Ad Litem for A.R., A.
Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.
This case involves an appeal by A.H., the natural mother
of A.R., A., and D.R., from a decision of the
superior court affirming the relocation of the three children to
a foster home in Anchorage.
A.R., A., and D.R. are the minor children of A.H.
and D.R., Sr. A.H. is a full-blooded
Alaska Eskimo and the minor children involved in this proceeding
are subject to the requirements of the Indian Child Welfare
Act (ICWA), 25 U.S.C. §§ 1901-1963.
A.H. married D.R., Sr. in 1973. In 1978, A.H. and
D.R., Sr. were divorced. At that time, the couple's oldest
daughter A.R. was four years old, the youngest daughter A.
was three years old, and the son D.R. was two
years old. D.R., Sr. was awarded legal custody of all
In 1983, A.H. married D.H. A.H. and D.H. adopted one
child and had two natural children of their own. The
couple also sought to regain custody of A.H.'s children from
her prior marriage.
On January 18, 1986, the Department of Family and Youth
Services (DFYS) took emergency protective custody of A.R., A., and
D.R. because of allegations of sexual abuse of the children
by D.R., Sr. The children were removed from their father's
home and placed in Anchorage foster homes. A.R. and A.
were placed in the "M" foster home in Anchorage. D.R.
was placed in another Anchorage foster home.
Social Worker Mary Savage testified that while A.H. immediately sought
custody, the State did not return the children to A.H.
until a favorable home study was completed. The children were
placed with A.H., who then resided in Juneau, in August
1986. The State's plan at the time was to maintain
State custody until such time as the divorce decree could
be amended to change legal custody
to A.H. On November 14, 1986, a stipulation was entered
adjudicating the children as Children in Need of Aid on
the grounds that the children refused to return to the
Between the time of the placement of the three children
with A.H. in August 1986 and October 1987, when the
children were removed from the home, there were readjustment problems
for the entire family.
The children remained in A.H.'s home for a period of
14 months while DFYS attempted to provide services to the
H.'s to stabilize the family. In the fall of 1987,
social worker Lisa Clough, and social work supervisor Jim Shanks,
felt that they no longer could guarantee the children's safety
in A.H.'s home. Homemaker Marlene Grant reported to DFYS that
she believed that there was hitting going on in the
home and that she had intervened physically on two occasions.
A.'s emotional stability had deteriorated to the point where she
was considered a serious suicide risk.
Reports were received from therapist Billie Lillie, counselor Ray Malaby,
and a friend of A.'s that A. was talking about
On October 22, 1987, social worker Lisa Clough called a
meeting with therapist Billie Lillie; school counselor Ray Malaby; Mark
Millard, D.R.'s counselor; and Frank Francisco, a family counselor who
had seen the H.'s on two occasions.
All participants of the meeting agreed that the children should
be removed from the H.'s home.
After the children were removed from her home, A.H. sought
review of the placement decision. The placement review was combined
with the annual review hearing which began on March 10,
1988. Four days of testimony was presented, and the court
also listened to tapes of telephone conversations between the H.'s
and the children. These recordings were made by the H.'s
without the children's knowledge. On August 17, 1988, the superior
court issued its order on annual review. The superior court
found: (1) that by a preponderance of the evidence, the
children continued to be Children in Need of Aid; (2)
that by clear and convincing evidence, the children were likely
to suffer physical and emotional damage if left in the
custody of their mother; and (3) that DFYS did not
abuse its discretion in moving the children to an Anchorage
foster home placement.
A. Finding that the Minors Continued to Be Children in
Need of Aid
In its findings of fact, the trial court discussed the
long-term sexual abuse of the children by their father as
the basis for the DFYS' original decision to take custody
of the children. In its order on annual review, the
court found "by a preponderance of the evidence that the
minors continue to be children in need
of aid, and that active efforts were made to provide
remedial services and rehabilitative programs designed to prevent the breakup
of the Indian family but that these efforts were unsuccessful."
factual findings supporting the trial court's determination that a minor
is a Child in Need of Aid will not be overturned on review unless clearly
D.E.D. v. State, 704
P.2d 774, 783 (Alaska 1985) (trial court's finding of abandonment under
AS 47.10.010(a)(2)(A) reviewed under clearly erroneous standard). The
trial court's finding is clearly erroneous where this court is "left
with the definite and firm conviction that a mistake has been made."
E.J.S. v. State
Dep't of Health & Social Serv.,
754 P.2d 749, 750 n. 2 (Alaska 1988); E.A.
v. State, 623 P.2d
1210, 1212 (Alaska 1981).
Alaska Statute 47.10.080(f) provides:
minor found to be ... a child in need of
aid is a ward of the state while committed to
the department or the department has the power to supervise
the minor's actions. The court shall review an order made
under (b) or (c)(1) or (2) of this section annually
... to determine if continued placement ..., as it is
being provided, is in the best interest of the minor
and the public.
Alaska Statute 47.10.083 requires the following review hearing information:
the case of a child in need of aid, the
child shall be returned home at the review hearing under
AS 47.10.080(f) unless *1232
the court finds by a
preponderance of the evidence that the basis upon which the
child was adjudicated under AS 47.10.010(a)(2) continues to exist. If
the child is not returned home, the court shall establish
on the record
why the child was removed from the home;
what services have been provided to or offered to the
parents to facilitate reunion;
what services were utilized by the parents to facilitate the
the visitation history between the parents and the child;
whether additional services are needed to facilitate the return of
the child to the child's parents;
when return of the child can be expected.
trial court's findings are in substantial compliance with these statutory
requirements. The evidence presented at trial clearly showed
that the conditions that led to the children's placement in State custody
continue to exist. Their father was in prison for his sexual
abuse conviction, and the children were unwilling and unable to live with
him. The children continued to suffer from emotional and psychological
problems as a result of this abuse. The experts at the trial all testified
as to the children's need of an emotionally supportive family situation
and professional counselling. We therefore conclude that the
trial court's finding that the children remained in need of aid is not
A.H. argues that the provisions of AS 47.10.010(a)(2)(D) do not
render all children subject to sexual abuse at the hands
of one parent Children in Need of Aid when no
evidence has been presented that the remaining parent knew or
acquiesced in the abuse of the children.
[FN2] A.H. contends that the trial court therefore erred in
concluding that the children continued to be Children in Need
AS 47.10.010(a)(2)(D) provides that AS 47.10 governs
the court finds the minor
. . . . .
to be a child in need of aid as a
. . . . .
the child having been sexually abused either by the child's
parent, guardian or custodian, or as a result of conditions
created by the child's parent, guardian or custodian, or by
the failure of the parent, guardian or custodian adequately to
supervise the child.
guardian ad litem
that because the father had sole legal custody of the children at the
time of the abuse, the children were and
continue to be Children in Need of Aid. We agree. The
statute provides for the designation of a Child in Need of Aid if the
child was sexually abused by a single parent. Under the plain
language of the statute, the other parent's acquiescence or fault in allowing
the abuse to occur is not required in order to find the child to be in
need of aid.
The State contends that A.H. did not properly raise this
legal issue on appeal.
this case, the designation of the minors as children in need of aid acted
to cut off the father's sole legal custody; it did not terminate
A.H.'s residual parental rights remaining after her divorce from D.R.,
AS 47.10.084(c). We therefore conclude that the trial court
did not make a legal error in holding that the children continued to be
in need of aid under AS 47.10.010(a)(2)(D).
B. Finding that Return of the Children to A.H.'s Home
Would Result in Physical or Emotional Damage to Them
The Indian Child Welfare Act provides in section 1912(e) that:
foster care placement may be ordered ... in the absence
of a determination, supported by clear and convincing evidence, including
testimony of qualified expert witnesses, that the continued
custody of the child
by the parent
or Indian custodian is likely to result in serious emotional
or physical damage to the child.
"Foster care placement" is defined by ICWA as "any action
removing an Indian child from its parent or Indian custodian
for temporary placement in a foster home ... where the
parent or Indian custodian cannot have the child returned upon
demand, but where parental rights have not been terminated." 25
U.S.C. § 1903(1)(i).
Both parties agree that section 1912(e) applies to this case.
We therefore do not reach the question of whether the
new foster care placement disrupted A.H.'s "continued custody" of the
Judge Jahnke found "that clear and convincing evidence, including the
testimonies of experts, was presented that proved that the minors
were likely to suffer physical and emotional damage if left
in the custody of their mother." A.H. contends that this
finding is clearly erroneous. She contends that the court's finding
that she had a tendency to use "low to moderate
levels of force to discipline the children" does not satisfy
the required finding of "serious physical damage." The State contends
that the court's finding is supported by the evidence.
The superior court found that the emotional needs of the
children had not been addressed
adequately by the H.'s. A.H. argues that this finding is
premised on two erroneous and inconclusive grounds: (1) "poor parenting
by the H.'s and (2) an unwillingness to accept assistance
and counselling from the professionals and agencies involved.
A.H. argues that the fact that she and her husband
are not "ideal" parents does not justify a finding that
their continued care is likely to result in serious emotional
harm to the children.
A.H. argues that she and her husband were not unwilling
to engage in counselling but rather were frustrated by "inconsistent"
demands of various social workers.
The State relies on the testimony of DFYS social workers,
counsellors, and other experts concerning the children's emotional needs, the
problems of fighting, quarreling, and inappropriate discipline in the H.
home, and the H.'s inability to meet the children's special
needs. In particular, the State points to evidence of the
youngest daughter A.'s threats of suicide and D.R.'s deteriorating psychological
light of the above evidence, one is not left with a definite and firm
conviction that the court erred in finding that clear and convincing evidence
supported the conclusion that leaving the children in the H.'s home would
likely result in serious emotional damage.
A.H. also argues that the court's finding that "the minors
were likely to suffer physical and emotional damage" does not
meet the required finding of serious
damage. Despite the miswording of the court's findings, the evidence
in the record clearly supports a finding of the potential
for serious damage. We affirm the superior court on this
C. The Anchorage Foster Care Placement
A.H. argues that the DFYS' decision to place the children
in the M. foster home in Anchorage constituted a de
termination of A.H.'s parental rights of visitation.
[FN7] A.H. urges that the decision therefore should have been
reviewed in the superior court under the clear and convincing
The foster care placement preferences of § 1915(b)
of ICWA are not at issue in this case.
a general rule, the proper standard of review for placement decisions
by DFYS is for abuse of discretion. In
re B.L.J., 717 P.2d
376, 380-81 (Alaska 1986). However, in D.H.
v. State, 723 P.2d
1274, 1277 (Alaska 1986), this court held that where the placement decision
constitutes a de
facto termination of
parental visitation rights,
[FN8] the trial court must determine independently whether clear and convincing
evidence shows that the children's best interests are served by disallowing
the parental visitation.
These visitation rights are contained in AS 47.10.084(c) which provides:
there has been a transfer of legal custody or appointment
of a guardian and parental rights have not been terminated
by court decree, the parents shall have residual rights and
responsibilities. These residual rights and responsibilities of the parent include,
but are not limited to, the right and responsibility of
court found that "[a] termination of visitation rights exists ...
where the state's decision as a practical *1234
matter precludes the parent from exercising his or her right of reasonable
visitation." 723 P.2d at 1277. In D.H.,
the child was moved from Fairbanks to Alabama. In concluding
that the State's decision represented a de
facto termination of
D.H.'s rights of visitation, the court noted:
D.H. is unemployed and virtually penniless. Since the state will
not provide air fare to Alabama he cannot visit the
children on a regular basis there.
D.H. would be limited to phone "visits" with the children
and these visits would further be limited since D.H. lacks
the funds to call regularly. Additionally, long-distance phone calls do
not fulfill a parent's substantive right of reasonable visitation.
723 P.2d at 1176-77. A.H. argues that the State's decision
to place the children in the M. foster home in
Anchorage is analogous to the one in D.H.
since she does not have the financial means to travel
from Juneau to Anchorage. [FN9]
While the family's financial situation may prohibit visiting the children
in Anchorage on a regular basis, we hold that A.H.'s
situation does not resemble the extreme facts presented in D.H.
[FN10] We therefore conclude that the placement in Anchorage did
not constitute a de
termination of A.H.'s rights to reasonable visitation.
A.H. is unemployed and earns only $1,000 a year making
baskets. Her husband is employed as a helicopter mechanic for
the Alaskan National Guard. He has an annual income of
We note that the record reflects that DFYS contemplates establishing
regular visitation between A.H. and the children, including a longer
period of visitation during the children's summer school recess. We
trust that the State will establish a regular visitation schedule
eventual family reunification and lessen the hardships involved in the
distances between the family members.
the placement decision did not constitute a de
facto termination of
visitation rights, then the issue before us on appeal is whether the trial
court's finding that DFYS did not abuse its discretion [FN11]
is clearly erroneous. A.H. argues that the trial court erred
in upholding DFYS' decision even under this less stringent standard of
In re B.L.J.,
717 P.2d 376, 380-81. An abuse of discretion is found
when the decision by DFYS is arbitrary, capricious, or manifestly
Safeco Ins. Co. of Amer. v. Honeywell, Inc.,
639 P.2d 996, 999 (Alaska 1981) (discretionary determination of the
trial court will be reversed "only if it is arbitrary,
capricious or manifestly unreasonable").
We disagree. The trial court specifically considered the H.'s interests
in family unification and the children's placement in Juneau near
their natural mother. However, the trial court agreed with DFYS'
analysis that placement in the Anchorage foster home was in
the children's best interest since two of the children had
developed an important relationship with the M.'s before
their placement in the H.'s home and that the M.'s
presented the best hope of meeting the children's unique emotional
We conclude that there is substantial evidence in the record
to support DFYS' decision to place the children in the
M. foster home. We are not left with a firm
conviction that the trial court erred in concluding that DFYS'
decision was not an abuse of discretion. We therefore affirm
the trial court on this issue.
D. Refusal to Allow the Children to Testify at the
A.H. argues that the trial court abused its discretion in
not allowing the children to testify regarding their desired placement
pursuant to Alaska Child in Need of Aid Rule 3(b).
[FN12] A.H. urged that the court require the children to
testify, but in the alternative, requested that the court listen
to recorded conversations between the H.'s and the children, that
had been taped by D.H. without the children's knowledge.
Child in Need of Aid Rule 3(b) provides:
child who is not of suitable age to understand or
participate in the proceedings need not be present at hearings
unless the court so orders. The court may excuse the
presence of a child who is of suitable age if
attendance would be detrimental to the child. The child or
the child's guardian ad litem may waive the child's right
to be present at a particular hearing.
Rule 3 clearly places this decision in the broad discretion
of the trial court. Given the testimony concerning the children's
placement preferences, the stress that testifying would have on the
children, and the fact that the court listened to the
taped conversations, one cannot say that the court's decision was
an abuse of discretion. We therefore affirm the trial court's
decision not to require the children's testimony.
The judgment of the superior court is therefore AFFIRMED.