Jude M. v. State, Supreme Court No. S-16233

Citation394 P.3d 543
Decision Date28 April 2017
Docket NumberSupreme Court No. S-16233
CourtSupreme Court of Alaska (US)
Parties JUDE M., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

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, "[c]onflicting 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...

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    ...ex rel. C.Z. , 262 P.3d 895, 906 (Colo. App. 2010), the State offered to assist the parent in applying for housing. In Jude M. v. State , 394 P.3d 543, 556 (Alaska 2017), the State arranged for telephonic visits between the child and the incarcerated parent.¶85 In In re Welfare of L.N.B.-L.......
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    • Journal of Appellate Practice and Process Vol. 22 No. 2, June 2022
    • June 22, 2022
    ...custodian is likely to result in serious emotional or physical damage to the child."); Jude M. v. Dep't of Health & Soc. Servs., 394 P.3d 543, 550 (Alaska 2017) (concluding that whether a child would likely suffer serious harm if returned to the parent is a question of MASS. GEN. LAWS A......

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