as: 50 P.3d 388)
Court of Alaska.
of Alaska, Appellee.
June 21, 2002.
court will affirm a trial court's factual findings in cases
of termination of parental rights unless those findings are clearly
erroneous; a finding of fact is clearly erroneous when appellate
court is left with a definite and firm conviction based
on the entire record that the trial court has made
is a mixed question of law and fact as to
whether the state has complied with the "active efforts" requirement
of the Indian Child Welfare Act (ICWA), and appellate court
will defer to the trial court's factual findings under the
clearly erroneous standard and review de novo any questions of
law. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
the factual findings are sufficient in termination of parental rights
cases to satisfy the child in need of aid (CINA)
rules is a question of law that appellate court will
review de novo.
questions are questions of law for which appellate court will
substitute its own judgment, and appellate court will adopt the
rule of law that is most persuasive in light of
precedent, reason, and policy.
Child Welfare Act (ICWA) did not require active efforts to
reunify father with children after father was convicted of sexually
abusing his children. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
the Indian Child Welfare Act (ICWA), the court decides on
a case-by-case basis whether active efforts to provide remedial services
and rehabilitative programs designed to prevent the breakup of the
Indian family have been made. Indian Child Welfare Act of
1978, § 2
et seq., 25 U.S.C.A. § 1901
the state's duty under the active efforts requirement under the
Indian Child Welfare Act (ICWA) is not affected by a
parent's motivation or prognosis before remedial efforts have commenced. Indian
Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
efforts to reunify the abusing parent are not required by
the Indian Child
Welfare Act (ICWA) in a situation after there has been
a judicial determination that the parent has subjected the child
to sexual abuse. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
parental rights could be terminated without testimony from an expert
on Native life, as cultural issues were not implicated in
the proceedings, and there was sufficient expert testimony that sons
who had been sexually abused by father could suffer severe
emotional harm if parental rights were not terminated.
court had jurisdiction over proceedings for the termination of parental
rights, although father claimed sons returned to their "Indian Custodians,"
where tribe representatives signed a stipulation, approved by trial court,
that tribe was contacted regarding stability of current placements and
that tribe was in agreement with state's handling of the
situation, including boys' placement
with non-Native families, there was no indication that tribe petitioned
for proceedings to be transferred to tribal court, and no
petition for removal was ever filed. Indian Child Welfare Act
of 1978, § 101(b),
25 U.S.C.A. § 1911(b);
complied with preference guidelines of Indian Child Welfare Act (ICWA),
where state contacted local native association to find foster placement
for children but there was never a Native family available,
children were placed with their aunt but that did not
work out, state contacted children's other aunt, father did not
offer names of any other relatives who could care for
children, and tribe representatives signed stipulation stating that state worked
in conjunction with tribe to find placement with family pursuant
to ICWA, that placement with relatives or other Native families
was not available, and that good cause existed to deviate
from ICWA preferences.
that placement with father was likely to result in serious
physical or emotional damage to sons was sufficient to meet
the "beyond a reasonable doubt" standard required by Indian Child
Welfare Act (ICWA), supporting termination of parental rights; father was
criminally convicted of sexually abusing sons, and experts with personal
knowledge of facts of case and expert with substantial expertise
in sex offender treatment testified about the possibility of harm.
Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
J.S., pro se, Anchorage, and Gayle J. Brown, Anchorage, for
Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Alan L. Schmitt, Kodiak, Guardian Ad Litem.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
parental rights were terminated as to his sons Avery, Lyle,
and Carl after Jack was convicted of five counts of
sexual abuse against them. Jack claims several errors were made
by the superior court. Because we find that the superior
court did not need to require active efforts under the
Indian Child Welfare Act, we uphold the termination of Jack's
Pseudonyms have been used throughout this opinion for all family
FACTS AND PROCEEDINGS
This case involves the termination of Jack's parental rights to
his three sons: Avery, Lyle, and Carl. Avery was born
in June 1988. Lyle and Carl, twins, were born in
June 1989. Custody of the boys appears to have been
transferred to Jack on September 7, 1989 after the state
petitioned to have the boys removed from their mother's custody
when the twins tested positive for cocaine at birth. During
the first several years of the twins' life, custody apparently
went back and forth between the mother and Jack. Between
January 1, 1994 and January 25, 1996, the boys lived
with Jack in Kodiak.
The Division of Family and Youth Services (DFYS) removed the
boys from Jack's care on January 25, 1996 due to
reports to the *390
Kodiak police department and DFYS case worker, Mary Gray, by
the boys' mother and other relatives, that Jack
was sexually abusing all three boys. Jack was charged with
eight counts of engaging in acts of sexual contact and
sexual penetration including fellatio, digital anal penetration, and penile anal
penetration. A jury convicted Jack of four counts of first-degree
sexual abuse of a minor and one count of second-degree
sexual abuse of a minor, counts which involved all three
boys. Jack was sentenced to nineteen years with four years
suspended. Also, as conditions of parole, Jack was ordered not
to have contact, direct or indirect, with his sons or
his own sisters, or their families, without prior written approval
of the parole officer. Jack was also ordered not to
have contact with any minor children under the age of
sixteen without the approval of the parole officer. The court
of appeals upheld Jack's conviction in its entirety.
After their removal from Jack's custody, the boys were placed
in emergency custody. DFYS attempted to place the boys with
their mother after her promise to remain clean and sober.
The mother moved with the boys into a local women's
shelter but abandoned them sometime during the night of February
4, 1996. After their mother's abandonment, the boys were placed
in foster care and then placed with their aunt Cara
on March 22, 1996. The boys remained with Cara until
she informed DFYS that they had to be moved due
to their inappropriate sexual behavior with each other and her
own children. The boys have since been placed in separate
foster homes. The mother's parental rights were
terminated on August 24, 1999.
The state petitioned to have the boys declared children in
need of aid on January 26, 1996. The superior court
delayed the proceedings on several occasions pending resolution of Jack's
criminal charges. The boys were adjudged children in need of
aid under AS 47.10.010(4) by the superior court on January
7, 1997. Also on that date the superior court granted
the state's motion for summary judgment, holding that Jack was
collaterally estopped from denying that he sexually abused his children
in light of his criminal conviction. In January 1999 DFYS
petitioned for termination of Jack's parental rights as to all
three boys. Jack moved to have the boys declared Indian
children for the purposes of the Indian Child Welfare Act
(ICWA). Preliminary hearings were held in front of Superior Court
Judge Donald D. Hopwood on January 26, 1996 and Standing
Master Anna M. Moran on February 2, February 17, May
4, and May 20, 1999. The termination proceeding was held
May 25-27, 1999 before Standing Master Moran.
The Muscogee (Creek) Nation moved to intervene in the proceedings
under ICWA and that motion was granted by Standing Master
Moran. In accordance with Standing Master Moran's findings, the superior
court found, beyond a reasonable doubt, that termination of Jack's
parental rights was appropriate under AS 47.10.080(o)
given the length of his incarceration and the needs of
These findings were based on the testimony of six expert
witnesses and a social worker.
However, the superior court found that it was uncontroverted that
the state failed to offer any type of active remedial
or rehabilitative services to Jack as required by ICWA. The
superior court found that for rehabilitation to occur, Jack would
have to admit that he sexually abused his children and
enroll in a sex offender treatment program. The superior court
held the record open for sixty days in order to
allow the state to develop and offer a treatment plan
to Jack; and ruled that if Jack failed to accept
the plan during this time his parental rights would be
The state developed a case plan that included the requirement
that Jack admit to charges I through VIII of his
March 28, 1996 indictment, openly take full responsibility for his
behavior, write a letter of apology to each of his
three sons involved in the termination proceedings, direct his attorneys
to terminate all appeals of his criminal case, and enroll
and be accepted into a sex offender treatment program. Jack
rejected the proposed case plan because it required him to
admit to the sexual abuse of his sons and *391
because it required him to cease his criminal appeals.
The superior court ordered the matter to be heard by
Standing Master Moran for additional findings on the issue of
the state's compliance with the August 24, 1999 order. Standing
Master Moran found that the state's case plan satisfied ICWA's
remedial measures requirement and recommended termination of Jack's parental rights
in December 1999. In January 2000 the superior court approved
a stipulation between the state and the Muscogee Creek representatives
noting that DFYS contacted all of the boys' relatives, that
no family members were willing or capable of caring for
the boys, and that no families meeting the preference requirements
of § 1915(a)
of ICWA were found after diligent effort by DFYS. The
superior court issued an order in accordance with the findings
of Standing Master Moran in May 2000.
Jack now appeals the decision of the superior court terminating
his parental rights.
STANDARD OF REVIEW
We will affirm a trial court's
factual findings in cases of termination of parental rights "unless
those findings are clearly erroneous." [FN2]
A finding of fact is clearly erroneous when we are left with a definite
and firm conviction based on the entire record that the trial court has
made a mistake.
[FN3] It is a mixed question of law and fact as to whether the state
has complied with the "active efforts" requirement of ICWA.
[FN4] We will defer to the trial court's factual findings under the "clearly
erroneous" standard and review de
novo any questions
of law. [FN5]
"Whether the factual findings are sufficient to satisfy the
[CINA] rules is a question of law" that we will review de
questions are questions of law for which we will substitute our own judgment.
[FN7] We will "adopt the rule of law that is most persuasive
in light of precedent, reason, and policy." [FN8]
v. State, Dept. of Family & Youth Servs.,
982 P.2d 256, 259 (Alaska 1999).
865 P.2d 94, 96 (Alaska 1993).
982 P.2d at 259.
v. State, Dep't of Health & Soc. Servs.,
26 P.3d 1089, 1092 (Alaska 2001).
790 P.2d 702, 704 (Alaska 1990).
591 P.2d 1281, 1284 n. 6 (Alaska 1979).
The Superior Court Did Not Err In Terminating Jack's Parental
Rights Because Active Efforts Were Not Required under ICWA.
argues that the proposed case plan offered by the state in response to
the superior court's August 24, 1999 order did not comply with ICWA's
requirement that active efforts be made to rehabilitate a family prior
to the termination of parental rights. The state and the guardian
(GAL) argue that the active efforts requirement was complied with. The
state and the GAL also argue that ICWA should be interpreted as not requiring
active efforts once a family is irrevocably sundered by parental sexual
Indian Child Welfare Act requires the state to prove "active efforts
... to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family." [FN9]
We decide whether active efforts have been made on a case-by-case
[FN10] Generally, the state's duty under the active efforts requirement
is not affected by a parent's motivation or prognosis before remedial
efforts have commenced. [FN11]
We have previously held that "[n]either incarceration nor doubtful
prospects for rehabilitation will relieve the State *392
of its duty under ICWA to make active remedial efforts." [FN12]
25 U.S.C. § 1912(d).
v. State, Div. of Family & Youth Servs.,
19 P.3d 597, 603 (Alaska 2001).
v. State, Dept. of Family & Youth Servs.,
982 P.2d 256, 261 (Alaska 1999).
891 P.2d 815, 827 (Alaska 1995), overruled
on other grounds, Matter of S.A.,
912 P.2d 1235, 1239 (Alaska 1996); see
also A.B.M. v. M.H. & A.H.,
651 P.2d 1170, 1173 (Alaska 1982) (holding that there was
no compelling reason for implying a judicially created exception to
However, the enactment of the
Adoption and Safe Families Act of 1997 [FN13]
(ASFA) convinces us that it is the policy of Congress to not require remedial
measures in situations where a court has determined that a parent has
subjected his or her child to sexual abuse. This enactment
amended 42 U.S.C. § 671 so as not to require reasonable efforts
to be made to preserve the family when "a court of competent jurisdiction
has determined that ... the parent has subjected the child to aggravated
circumstances," which includes sexual abuse.
[FN15] Although this case is not governed by ASFA, that act is useful
in providing guidance to congressional policy on child welfare
issues. It suggests that in situations of adjudicated devastating
sexual abuse, such as this one, a person's fundamental right to parent
is not more important than a child's fundamental right to safety. Therefore,
we hold that active efforts to reunify the abusing parent are not required
in a situation after there has been a judicial determination that the
parent has subjected the child to sexual abuse.
Pub.L. No. 105-89, 111 Stat. 2115 (1997) (codified as amended
in scattered sections of 42 U.S.C.). This provision of the
federal act has been adopted in Alaska as AS 47.10.086(c)(1).
at § 101.
42 U.S.C. § 671(a)(15)(D)(i)
(2001). We note that the Alaska Legislature has adopted this
exception to the reasonable efforts requirement in regard to children
in need of aid in AS 47.10.086(c).
Because the superior court could find the state's active efforts
duty was discharged when Jack was convicted of sexually abusing
his children, the superior court did not err in terminating
his parental rights.
Jack also argues on appeal that, by requiring him to
admit to charges I through VIII of his criminal indictment
in order to prevent the termination of his parental rights,
the state violated his constitutional right against self-incrimination and that
the superior court erred in giving the state time to
comply with ICWA. Because we hold that the state was
not required to make active efforts, it is unnecessary to
reach these two issues.
The Superior Court Did Not Err in Qualifying the Expert
argues that the superior court erred when it qualified experts that were
without special knowledge of social and cultural aspects of Native life.
In L.G. v. State,
Department of Health and Social Services,
[FN17] we stated that "so long as a termination proceeding does not
implicate cultural bias, ICWA's proof requirements can be satisfied by
a qualified expert witness without any special familiarity with Native
cultural standards." [FN18]
We went on to state that "where there is clear evidence that
a child faces a serious risk of physical neglect if she [or he] remains
in [the] parent's care, a trial judge may terminate parental rights without
hearing testimony from an expert in Native cultures." [FN19]
Jack has offered no evidence that the issue of cultural bias was
raised at trial.
14 P.3d 946 (Alaska 2000).
During the course of the termination proceedings, five experts testified
as to the risk to the boys if Jack's parental
rights were not terminated. The therapists for all three boys
(four therapists in total) testified that the boys could not
be transitioned back into Jack's custody without substantial emotional harm.
In addition, all four therapists testified that the boys would
suffer severe emotional distress if they were required to leave
the respective foster families to which they had bonded. Therefore,
the superior court did not err in terminating Jack's parental
rights without hearing testimony from an expert on Native life
because cultural issues were not implicated in the proceedings and
there was sufficient expert testimony that the boys could suffer
severe emotional harm if Jack's parental rights were not terminated.
The Superior Court Did Not Lack Jurisdiction.
argues that the superior court lacked jurisdiction because violations
of law occurred during the proceedings. ICWA provides for
of termination proceedings to the tribal court to which the children belong
in some circumstances.
[FN20] However, Jack does not seem to be arguing here, nor did he
argue in the superior court, that jurisdiction be transferred to the Muscogee
tribal court. Instead, he argues that proceedings should be
terminated and the boys returned to their "Indian Custodians."
Jack's "Motion to Move Superior Court to: Declination of Jurisdiction:
and Forthwith Return of Child to Indian Custodian" appears
to be a motion to dismiss the proceedings in their entirety. Also
pertinent is the fact that the Muscogee Tribe representatives signed a
stipulation, that was approved by the superior court, that the tribe was
contacted regarding the stability of the current placements and that the
tribe is in agreement with the state's handling of the situation, including
the boys' placement with non-Native families. There is evidence that the
Muscogee Tribe reserved the right to petition that the proceedings be
transferred to the tribal court but there is no indication that a petition
was ever filed. Also, a petition for removal under U.S.C.
§ 1911 was never filed. Therefore, the superior court
had jurisdiction over these termination proceedings.
25 U.S.C. § 1911(b)
(2000) provides in relevant part:
Transfer of proceedings; declination by tribal court
any State court proceeding for the foster care placement of,
of parental rights to, an Indian child not domiciled or
residing within the reservation of the Indian child's tribe, the
court, in the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction of the tribe,
absent objection by either parent, upon the petition of either
parent or the Indian custodian or the Indian child's tribe:
That such transfer shall be subject to declination by the
tribal court of such tribe.
The Superior Court Did Not Err in Upholding the State's
Placement of the Children Outside of ICWA Preferences.
Jack argues that the state failed to follow ICWA's placement
requirements because there were family members of Jack who were
willing to take the boys but who were never contacted
by the state.
[FN22] Jack argues that his brother, Aaron, was willing to
take the children, as was Jack's sister, Lilly. Jack also
argues that the state failed to inquire about any extended
family that may be able to take the boys.
25 U.S.C. § 1915(b)
Foster care or preadoptive placements; criteria; preferences Any
child accepted for foster care or preadoptive placement shall be
placed in the least restrictive setting which most approximates a
family and in which his special needs, if any, may
be met. The child shall also be placed within reasonable
proximity to his or her home, taking into account any
special needs of the child. In any foster care or
preadoptive placement, a preference shall be given, in the absence
of good cause to the contrary, to a placement with--
a member of the Indian child's extended family;
a foster home licensed, approved, or specified by the Indian
an Indian foster home licensed or approved by an authorized
non-Indian licensing authority; or
an institution for children approved by an Indian tribe or
operated by an Indian organization which has a program suitable
to meet the Indian child's needs.
DFYS case worker Mary Gray testified
that she contacted the Kodiak Area Native Association in order to find
foster placement for the boys on several occasions but that there was
never a Native family available. Gray also testified that
the boys were placed with their aunt, Cara, but that did not work out.
Gray then contacted the boys' other aunt, Lilly, but after
between Lilly and DFYS, Lilly decided that she should not take care of
the boys. Also, Gray testified that she had a meeting with
Jack in the summer of 1998 but that Jack did not offer the names of any
relatives who could care for the boys and that she had never heard of
Jack's brother, Aaron, until he appeared on the witness list in the proceedings.
Furthermore, the Muscogee Tribe representatives signed a stipulation
that the state worked in conjunction with the tribe to find placement
with the boys' family pursuant to ICWA, that placement with relatives
or other Native families was not available, and that good cause existed
to deviate from ICWA preferences. The state complied with ICWA's
preference guidelines. Therefore, the placement of the boys was
not in error.
The Superior Court Did Not Rule that Jack Was To
Have No Direct or Indirect Contact with His Children.
Jack argues that the superior court erred when it found
that he was not to have any contact with his
children. Jack argues that this finding by the superior court
was one of the reasons that his parental rights were
erroneously terminated. There is no evidence that the superior court
ever ordered Jack to have no contact with his children
or based any orders in the termination proceedings on whether
or not contact occurred. In fact, Jack's criminal conviction states
that he was to have "[n]o contact, direct or indirect,
with the victims ... without prior written approval of the
Therefore, the superior court did not order him to have
no contact with his children; this was one of the
many conditions of Jack's parole.
The Superior Court Did Not Err in Denying Jack's Discovery
Jack argues that the superior court erred when it denied
discovery of notes to an interview that Jack believes occurred
between Mary Gray and the boys. Jack claims that he
was denied discovery of these notes because Gray and the
district attorney denied that this interview ever happened and the
superior court agreed with the district attorney and Gray. The
superior court granted Jack's discovery motion in part on February
11, 2000, allowing him access to any information that DFYS
may have had about communications between DFYS and Lilly. The
superior court issued another order on March 8, 2000 denying
Jack's discovery request because this discovery request was covered by
the court's previous order. In addition, DFYS proved that Jack
received discovery of DFYS's entire file in this case. Therefore,
the superior court did not deny Jack discovery; there was
no error in connection with the superior court's discovery orders.
The Superior Court Did Not Err in Finding Beyond a
Reasonable Doubt that Placement with Jack Was Likely To Result
in Serious Physical or Emotional Damage to the Children.
Jack argues that the evidence presented to the superior court by the state
was insufficient to meet the beyond a reasonable doubt standard required
[FN23] Specifically, Jack argues that the expert witnesses did not have
sufficient knowledge of the specific facts of this case. We
25 U.S.C. § 1912(f)
Parental rights termination orders; evidence; determination of damage to child
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, 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.
do not hold that a meeting between the expert and
the parties to the termination proceeding is required in every
case. But the expert opinion should be based on the
particular facts and issues of the case ... in order
to support a finding, beyond a reasonable doubt, that serious
physical or emotional harm will result.[
v. State, Dep't of Health & Soc. Servs.,
18 P.3d 1214, 1218 (Alaska 2001).
Jack was criminally convicted of sexually abusing the boys. The
superior court was therefore justified in finding in the termination
proceeding that this fact had been proven beyond a reasonable
doubt. We turn now to the specific expert testimony that
the state offered, and whether the expert opinions were sufficiently
based on the particular facts of this case.
The first expert to testify was Pamela A. Robinson, who
has a Bachelor of Science degree in sociology with a
minor in psychology and a master's degree in counseling psychology.
She testified that prior to getting her master's degree she
worked for twenty years in early childhood education and child
development, and that she has been qualified as an expert
in several other cases. At the time of her testimony,
she had been counseling Carl for approximately one and one-half
years. Upon the initial consultation, she diagnosed Carl with post-traumatic
stress disorder, possible major depression, and adjustment disorder. She stated
that she believed that Carl could not be transitioned back
to Jack without causing Carl emotional harm.
The second expert to testify was Sandra Husted, who has
a bachelor's degree in sociology and a master's degree in
counseling. She stated that she was a Clinician II at
Providence Mental Health Center in Kodiak from January 1998 until
January 1999. At the time of the hearing, she had
been licensed as a professional counselor in Texas for nine
years. She had been qualified as an expert in psychotherapy
and crisis emergency in previous court cases. She testified
that she treated Avery from February of 1998 until November
of 1998 during which time she saw him approximately every
three weeks. She testified that Avery could not be transitioned
away from his foster family and back to Jack because
of the abuse perpetrated by Jack.
Dr. Robert B. Duthie testified next. He holds a Ph.D.
in counseling and clinical psychology and has been board certified
in forensic psychology since 1987. He stated that he had
been qualified as an expert in at least 100 previous
cases. He first met Lyle in June of 1998 and
had been following the case ever since. He testified that
Lyle had post-traumatic stress disorder arising from the sexual abuse
by Jack. He also testified that Lyle could not successfully
be placed back into custody with Jack without emotional harm
and risk of continued sexual abuse because Jack has not
received treatment nor apologized for the previous abuse.
The fourth expert to testify was Dr. Joseph M. Keville,
who has a Bachelor of Science degree in social services
and a Ph.D. in education; he has been a licensed
psychologist in Massachusetts since 1973. He practices in the area
of clinical child psychology. He testified that he had treated
approximately 1,000 children in the last ten years. He met
with Avery on two occasions and testified that he thought
that Avery would have a "severe depressive reaction" if he
was forced to leave his foster family.
The fifth expert to testify was Dr. Ronald D. Howes,
who has a bachelor's degree
and master's degree in psychology and a Ph.D. in clinical
psychology. He stated that he had completed over 2,000 hours
of clinical internship in forensic psychology with the California Department
of Corrections and is board certified in trauma psychology with
specialties in sex therapy and treatment of sex addictions. He
had testified as an expert in court on numerous occasions.
He stated that the recidivism rate for a sex offender
increased in cases with same gender sexual abuse, lack of
a strong family member supervising the family, and where the
abuse was not admitted to by the offender. He stated
that, given the situation in this case, the rate of
recidivism would be over fifty percent.
There was substantial testimony by experts with personal knowledge of
the facts of this case and an expert with substantial
expertise in sex offender treatment. The superior court's finding beyond
a reasonable doubt that placement with Jack would result in
serious emotional damage to the boys was therefore not clearly
We AFFIRM the termination of Jack's parental rights.
50 P.3d 388