Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

THEA G., 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF HEALTH & 

SOCIAL SERVICES, OFFICE OF 

CHILDREN’S SERVICES, 

Appellee. 

) 

) Supreme Court No. S-14663 

Superior Court Nos. 

3PA-09-00048/00049 CN 

O P I N I O N 

No. 6742 – January 9, 2013
 

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Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Palmer, Kari Kristiansen, Judge. 

Appearances: Marjorie K. Allard, Assistant Public Defender, 

and Quinlan Steiner, Public Defender, Anchorage, for 

Appellant. Megan R. Webb, Assistant Attorney General, 

Anchorage, and Michael C. Geraghty, Attorney General, 

Juneau, for Appellee. Mara Rabinowitz, Assistant Public 

Advocate, and Richard Allen, Public Advocate, Anchorage, 

for Guardian ad Litem. Native Village of Kotzebue, through 

its ICWA Representative, Clara Henry. 

Before: Fabe, Chief Justice, Carpeneti and Stowers, Justices. 

[Winfree and Maassen, Justices, not participating.] 

FABE, Chief Justice. 

CARPENETI, Justice, dissenting. 
 

 

 

 

 

 

 

 

 

I. INTRODUCTION 

Thea G. challenges the superior court’s order terminating her parental rights 

to her two children, Zach, age 12, and Abbie, age six. 1 The superior court terminated 

Thea’s parental rights based on her unremedied substance abuse issues. Thea raises three 

issues on appeal: First, she challenges the superior court’s finding that the Office of 

Children’s Services (OCS) made active efforts to prevent the breakup of her family. 

Second, she challenges the finding that if her custody over Zach and Abbie were 

continued the children would likely suffer serious emotional or physical damage. 

Finally, she challenges the finding that termination of her parental rights is in Zach’s and 

Abbie’s best interests. Because each of these findings is supported by sufficient 

evidence, we affirm the superior court’s order terminating Thea’s parental rights to Zach 

and Abbie. 

II. FACTS 

Thea and her husband, Samuel, had two children, Zach, born in 1999, and 

Abbie, born in 2005. Thea is a member of the Native Village of Kotzebue (the Tribe) 

and her children are eligible for membership, so the children are Indian children for 

2 purposes of the Indian Child Welfare Act (ICWA). 

Thea has struggled with substance abuse and domestic violence since at 

least 2003.3 In an incident that year, Thea, while intoxicated, physically assaulted her 

mother and sister in a struggle over the mother’s medication. Zach was present during 

1 Pseudonyms are used throughout to protect the privacy of the parties. 

2 25 U.S.C. §§ 1901-1963 (2006). 

3 Thea testified that she was raised in an alcoholic family and began drinking 

as a teenager, but that her drinking problems worsened after Zach was born. In addition 

to alcohol, her self-reported history of prescribed and non-prescribed drug use includes 

cocaine, marijuana, opioids, sedatives, and tranquilizers. 

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the scuffle. While being arrested, Thea kicked a corrections officer in the groin. Thea 

was convicted on two counts of domestic violence assault. In other, unrelated, incidents 

that year, Thea was convicted of assault and disorderly conduct. 4 Since that time, Thea 

has demonstrated a pattern of abusing substances — typically alcohol — resulting in runins with law enforcement, followed by attempts at treatment and periods of sobriety, and 

then, invariably, a relapse and descent into substance abuse again. 

In July 2004, while Thea was pregnant with Abbie, Zach was taken into 

OCS’s custody. OCS’s concerns included the family’s inadequate housing, Thea and 

Samuel’s substance abuse, and repeated incidents of domestic violence between the 

couple in Zach’s presence. OCS developed a case plan recommending that Thea 

participate in substance abuse treatment, a domestic violence assessment, and parenting 

classes. Thea completed a 35-day residential treatment program at Old Minto Family 

Recovery Camp. OCS returned Zach to his parents’ physical care after about a month 

but retained legal custody for a year. After completing treatment, Thea remained sober 

for 18 months, but in January 2006 she relapsed and was arrested for driving while 

intoxicated on alcohol and Valium with Zach and Abbie in her car. She was convicted 

of DUI and resisting arrest. 

Samuel died of natural causes in September 2008, and, following his death, 

Thea’s substance abuse escalated dramatically. She testified that she began abusing 

alcohol to the extent that her parenting was “terrible,” and she was often intoxicated 

while caring for her children. 

On May 8, 2009, Thea called the state troopers to report that Zach and 

Abbie had been missing from her home for hours. According to the emergency 

At the termination trial, Thea testified that she had been arrested multiple 

times for domestic violence and that each incident involved alcohol or drugs. 

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adjudication petition, the trooper who responded to her call found Thea to be “highly 

intoxicated” and unable to care for her children. Thea later admitted that she had been 

“caring for her children in an intoxicated state without a sober caretaker” and that she 

was “unaware for a significant period of time” that the children were not in the home. 

Because of Thea’s history of substance abuse, OCS took Zach and Abbie into its 

custody. The agency placed the children with Thea’s neighbors, the Newtons. OCS 

developed a case plan for the family; the plan required Thea to participate in substance 

abuse treatment and urine analyses (UAs), refrain from misusing prescription and overthe-counter medications, complete parenting classes, and participate in counseling. The 

plan provided liberal opportunities for Thea to have contact with the children. 

Within a month of the children’s removal, Thea was involved in a singlecar accident that resulted in another DUI conviction. Several days later, Thea was 

remanded into custody for alcohol screening, where her breath alcohol content 

registered .304. 

In late June 2009, following a referral by OCS, Thea began substance abuse 

treatment at Akeela House. She did not actively participate in the program, however, and 

withdrew after only 12 days. Her discharge report recommended that she receive mental 

health counseling and long-term treatment for mood-altering substances. 

For several weeks after Thea left Akeela House, she remained sober, she 

visited her children daily at the Newtons’ home, and she applied for admission to 

treatment at Salvation Army Clitheroe Center. But before Thea entered that program, 

she relapsed again. 

By the close of 2009, Thea was once again sober. She attended AA 

meetings, had a sober support system in place, participated in outpatient treatment at 

Alaska Family Services (AFS), and worked with OCS to gain admission to a residential 

treatment program at Southcentral Foundation Dena A Coy. As a result, on 

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December 10, 2009, OCS placed Zach and Abbie with Thea for a trial home visit. In 

disposition reports filed with the court in January 2010, Thea’s social worker and the 

children’s guardian ad litem praised Thea’s performance leading up to and during the 

trial visit. But the trial visit ended later that month because Thea again relapsed. The 

children were returned to the Newtons’ home. 

By spring 2010, Thea was again drinking heavily. In early March 2010, 

she was incarcerated on a DUI charge and underwent alcohol detoxification treatment. 

At the time, she reported that she was drinking half a bottle of vodka daily. 

The following month, Thea began a four-month residential treatment 

program at Dena A Coy, on referral by OCS. She successfully completed the program 

in August 2010, and she was discharged with a recommendation for participation in 

intensive outpatient care and attendance at AA/NA meetings. She was also referred to 

AFS for continued substance abuse and mental health counseling. She participated in 

the AFS program for a few months but did not complete it. 

In the fall of 2010, Thea and the Newtons asked OCS to place the children 

with Thea again for another trial home visit. Thea’s social worker, Fennisha Gardner, 

denied the request, stating that Thea was not ready for such a visit and that she did not 

want to set Thea up for failure. Despite OCS’s denial of the request, Thea and the 

Newtons defied OCS and transferred the children to Thea, after which the Newtons left 

town for a number of weeks. 

On November 3, 2010, Thea was arrested for driving while intoxicated on 

alcohol and Xanax with Zach and Abbie in her car. She pleaded guilty to felony DUI 

and endangering the welfare of a minor and was sentenced to 34 months incarceration 

with 31 months suspended. She received four years of felony probation, forfeited her 

car, permanently lost her driver’s license, was fined $10,000 with $7,500 suspended, and 

was ordered to participate in and graduate from mental health court. The children were 

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not placed back with the Newtons; instead, they were placed with Thea’s sister and her 

husband. 

As a result of her conviction, the mental health court referred Thea to 

treatment at Set Free Alaska, where she was assessed on March 28, 2011. During the 

assessment, she repeatedly “attempted to convince staff she did not need to go to 

[r]esidential [t]reatment and minimized issues.” Thea denied having problems with 

alcohol or drug use, and she assessed her risk of relapse as low. The assessor, however, 

diagnosed Thea as being dependent on alcohol, sedatives, and cocaine. She categorized 

Thea as being in the “precontemplation” stage of treatment, assessed Thea’s relapse 

potential as high, and categorized her motivation to participate in treatment as 100% 

external. The assessor recommended that Thea participate in high-intensity residential 

treatment. 

While awaiting admission to a residential treatment program, Thea was 

scheduled to begin outpatient treatment at Set Free Alaska on April 21, 2011. But a few 

days before her treatment was to begin, Thea was hospitalized for suicidal ideation. Her 

blood alcohol level at the time exceeded .250. Upon her release from the hospital, Thea 

began the outpatient treatment program, but she missed appointments from mid-May 

through mid-June due to yet another arrest, this time for driving with a revoked license, 

without insurance, and for avoiding an ignition interlock device. On August 8, 2011, 

Thea was discharged from Set Free Alaska for violating the program’s rules. Her 

discharge summary graded her progress as “unsatisfactory” and referred her to 

residential treatment. Late in September 2011, after the termination trial had begun, 

Thea began residential treatment at Clitheroe Center. The program was to last 90 days, 

following which Thea would be required to complete an aftercare program. At the time, 

Thea admitted to having “a problem with alcohol and drugs,” but she denied needing 

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residential treatment. She stated that she had entered the residential program at Clitheroe 

in part because it was required by the terms of her felony probation. 

III. PROCEEDINGS 

In March 2011, OCS filed a petition to terminate Thea’s parental rights. 

Trial was held during two days in September and October 2011. Thea testified, as did 

her social worker and her counselor from Set Free Alaska. In addition, OCS supervisor 

Karen Morrison testified as an expert regarding the risks of placing children with parents 

who have substance abuse problems and the effects on children of delayed permanency. 

The Tribe, which had intervened in the proceeding early on, participated in the 

termination trial through its non-attorney tribal representative, Clara Henry. Following 

the trial, the superior court terminated Thea’s parental rights to Zach and Abbie. 

Thea appeals the termination order. She contests the superior court’s 

findings that OCS made active efforts to preserve her family, that her continued custody 

of the children would likely result in their suffering serious emotional or physical harm, 

and that termination of her parental rights is in the children’s best interests. 

IV. STANDARD OF REVIEW 

A trial court’s determination that OCS made active, but unsuccessful, 

efforts to provide remedial services and rehabilitative programs designed to prevent the 

breakup of an Indian family presents a mixed question of fact and law.5 We review 

6 factual findings under the “clearly erroneous” standard and conclusions of law — such

5 Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

244 P.3d 1099, 1111 (Alaska 2010) (citing Sandy B. v. State, Dep’t of Health & Soc. 

Servs., Office of Children’s Servs., 216 P.3d 1180, 1186 (Alaska 2009)). 

6 Id. (citing Marcia V. v. State, Office of Children’s Servs., 201 P.3d 496, 502 

(Alaska 2009)). 

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as whether the trial court’s findings satisfy the requirements of ICWA — de novo.7 

Findings are clearly erroneous “if a review of the entire record in the light most favorable 

to the party prevailing below leaves us with a definite and firm conviction that a mistake 

has been made.”8 

A trial court’s determination that a parent’s continued custody of a child 

will likely result in the child suffering serious emotional or physical damage is a factual 

finding that we review for clear error.9 

A trial court’s decision to admit expert testimony is reviewed for an abuse 

of discretion.10 We will find that the trial court abused its discretion if, after reviewing 

the record as a whole, we are left with a definite and firm conviction that the trial court 

erred. 11 Whether expert testimony presented at trial satisfies the requirements of ICWA 

is a legal question that we review de novo.12 

7 Id. (citing Carl N. v. State, Dep’t of Health & Soc. Servs., Div. of Family 

& Youth Servs., 102 P.3d 932, 935 (Alaska 2004)). 

8 Brynna B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth 

Servs., 88 P.3d 527, 529 (Alaska 2004) (quoting A.B. v. State, Dep’t of Health & Soc. 

Servs., 7 P.3d 946, 950 (Alaska 2000) (internal quotation marks and citation omitted)). 

9 Christina J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 254 P.3d 1095, 1103-04 (Alaska 2011) (citing Barbara P. v. State, Dep’t of 

Health & Soc. Servs., Office of Children’s Servs., 234 P.3d 1245, 1253 (Alaska 2010)). 

10 Barbara P., 234 P.3d at 1253 (citing Lynden, Inc. v. Walker, 30 P.3d 609, 

612 (Alaska 2001)). 

11 Richard B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth 

Servs., 71 P.3d 811 (Alaska 2003) (quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650 

P.2d 375, 378-79 (Alaska 1982) (internal quotation marks omitted)). 

12 Lucy J., 244 P.3d at 1111 (citing Ben M. v. State, Dep’t of Health & Soc. 

Servs., Office of Children’s Servs., 204 P.3d 1013, 1018 (Alaska 2009)). 

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A trial court’s determination that termination of parental rights is in a 

child’s best interests is a factual finding that we review for clear error.13 

V.	 DISCUSSION 

A.	 The Superior Court Did Not Err In Determining That OCS Made 

Active But Unsuccessful Efforts To Provide Services And Programs To 

Prevent The Breakup Of The Family. 

Thea argues that the superior court erred in finding that OCS made active 

efforts to provide remedial services and rehabilitative programs designed to prevent the 

breakup of her family, as required by ICWA.14 She does not discuss the court’s finding 

or the evidence supporting it; instead she argues that the court erred by entering its 

finding without taking into account assertions made by the Tribe in its closing 

argument.15 

Thea’s argument fails for several reasons. First, her argument is 

unpersuasive because it does not address the trial court’s finding or the evidence 

supporting it. The record provides abundant support for the trial court’s finding that 

OCS provided Thea and her family with active reunification efforts. These efforts 

consisted of multiple case plans; multiple referrals for substance abuse evaluations and 

support for treatment programs; multiple referrals for mental health evaluations and 

13 Pravat P. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 249 P.3d 264, 270 (Alaska 2011) (citing Dashiell R. v. State, Dep’t of Health & 

Soc. Servs., Office of Children’s Servs., 222 P.3d 841, 850 (Alaska 2009)). 

14 25 U.S.C. § 1912(d) (2006). 

15 The Tribe joins Thea’s brief on appeal, specifically as to this issue. 

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counseling; medical, dental, and mental health services for the children; regular family 

contact between Thea and the children; and a trial home visit.16 

Thea seems to argue that despite the evidence demonstrating that OCS 

provided these numerous services over the years that this case was pending, the trial 

court could not properly have found OCS’s reunification efforts to be adequate without 

addressing certain claims made by the Tribe in its closing argument. But Thea is 

incorrect in light of an examination of the Tribe’s arguments. 

The Tribe’s first claim was that, early in the case, OCS delayed in holding 

a placement decision meeting and in obtaining paternity testing. The Tribe asserted that 

by these actions OCS hindered the Tribe’s ability to advocate for the children to be 

placed with paternal relatives. But even if the Tribe’s assertions were accurate, this 

argument goes to placement, not reunification efforts. Our caselaw establishes that 

placement is a separate issue from active efforts, and that the two issues must be 

analyzed separately.17 The exception to that rule — under which a placement decision 

16 The superior court considered efforts made on Thea’s behalf by the 

Department of Corrections and the mental health court, as well as those made by OCS. 

This is consistent with the language of ICWA, which does not specify that any particular 

entity must make active efforts, see 25 U.S.C. § 1912(d) (requiring a showing that 

“active efforts have been made to provide remedial services and rehabilitative programs 

designed to prevent the breakup of the Indian family”), and with our prior decisions. 

See, e.g., Jon S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 212 

P.3d 756, 765 (Alaska 2009) (efforts made by a parent’s parole officers count as active 

efforts for purposes of ICWA); Martin N. v. State, Dep’t of Health & Soc. Servs., Div. 

of Family & Youth Servs., 79 P.3d 50, 56 (Alaska 2003) (“While [a parent] is in prison, 

the Department of Corrections rather than [OCS] has primary responsibility for 

providing services to him[.]”). 

17 See, e.g., Roy S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 278 P.3d 886, 891 (Alaska 2012) (“[F]ailure to follow ICWA’s placement 

preferences cannot provide a basis for determining that OCS failed to undertake active 

(continued...) 

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may be relevant to an active efforts analysis — applies when a child’s placement directly 

impacts a parent’s ability to participate in remedial efforts.18 That exception is not 

implicated here. Indeed, in this case OCS placed the children with the Newtons at 

Thea’s request so that the family could remain close, in order to support family contact, 

which was a core element of Thea’s case plan.19 

The Tribe also claimed that OCS’s efforts were flawed because the agency 

delayed in obtaining mental health services for the children. But the record does not 

support this allegation. Instead, the record reflects that the children received appropriate 

mental health services throughout the duration of the proceedings. 

Finally, Thea’s argument fails because her allegation that the trial court 

ignored the Tribe’s closing argument is rebutted by the court’s statements on the record 

that “[t]he parties at trial included . . . the Native Village of Kotzebue,” and “the parties 

submitted closing argument briefing . . . and the Court has reviewed all those 

arguments.”20 The trial court did not err in finding that OCS provided Thea with active 

efforts to prevent the breakup of her family. 

17(...continued) 

efforts.”); David S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

270 P.3d 767, 780 (Alaska 2012) (“[P]lacement decisions present a separate analytical 

question from termination decisions.”). 

18 David S., 270 P.3d at 779. 

19 The superior court approved the non-relative placement, finding that OCS’s 

objective constituted good cause to deviate from ICWA’s placement preferences. 

20 Thea provides no legal authority to support her implied assertion that the 

trial court must individually address every assertion made by a party in a closing 

argument, and we have never required the trial court to do so. 

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B.	 The Superior Court Did Not Err In Finding That Thea’s Continued 

Custody Would Likely Result In The Children Suffering Serious 

Emotional Or Physical Harm. 

Thea argues that the superior court erred in finding that the children would 

likely suffer serious emotional or physical damage if returned to her care. She raises two 

challenges to the finding, which, by the terms of ICWA, must be supported by evidence 

beyond a reasonable doubt, including the testimony of one or more qualified expert 

witnesses.21 First, Thea argues that OCS supervisor Karen Morrison was not qualified 

to testify as an ICWA expert because (1) Morrison was not an expert in Native culture, 

and (2) as an employee of OCS, Morrison was unable to testify neutrally. Second, Thea 

argues that even if Morrison satisfied the qualifications to testify as an ICWA expert, her 

testimony was flawed because it was based solely on her review of the OCS file and the 

trial exhibits and was not sufficiently specific to this case. 

1.	 The superior court did not abuse its discretion in qualifying 

Karen Morrison to testify as an expert witness for purposes of 

ICWA. 

a.	 Morrison’s lack of expertise in cultural matters did not 

preclude her from testifying as an ICWA expert. 

ICWA requires that before a court may terminate parental rights, the court 

must find “beyond a reasonable doubt . . . 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.”22 The finding, which must be supported by expert testimony, requires proof 

that the parent’s conduct is unlikely to change and will likely cause serious harm to the 

21 25 U.S.C. § 1912(f) (2006). 

22 Id. 

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child in the future.23 These elements may be proved through the testimony of one or 

more expert witnesses, or by aggregating the testimony of lay and expert witnesses.24 

The strict standard of proof required for this finding reflects Congress’s 

goal to prevent the breakup of Native families “solely on the basis of testimony from 

social workers who lack[] the familiarity with Native culture necessary to distinguish 

between ‘the cultural and social standards prevailing in Indian communities and families’ 

and actual abuse or neglect.” 25 A witness may be qualified to testify as an expert under 

ICWA based on the witness’s personal experiences or professional expertise in Native 

culture.26 But: 

When the basis for termination is unrelated to Native 

culture and society and when any lack of familiarity with 

cultural mores will not influence the termination decision or 

implicate cultural bias in the termination proceeding, the 

qualifications of an expert testifying under § 1912(f) need not 

[ ] include familiarity with Native culture. 27

In the present case, OCS supervisor Morrison was qualified to testify as an 

expert without a showing that she was an expert in Native culture. Instead, her expertise 

was in the effects of substance abuse on families and the effects of delayed permanency 

23 Marcia V. v. S tate, Office of Children’s Servs., 201 P.3d 496, 503 (Alaska 

2009) (citing L.G. v. State, Dep’t of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 

2000)). 

24 L.G., 14 P.3d at 950 (Alaska 2000). 

25 Id. at 951 (citation omitted) (quoting 25 U.S.C. § 1901(5)). 

26 Id. at 951-52. 

27 Marcia V., 201 P.3d at 503. 

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on children. 28 Our decisions indicate that, in general, cases involving issues of parental 

substance abuse do not implicate cultural mores.29 Thea does not argue that her case is 

different, and she points to nothing to suggest that cultural issues or cultural bias played 

a role in OCS’s actions, in expert witness Morrison’s testimony, or in the superior court’s 

decision to terminate her rights. The superior court thus properly allowed Morrison to 

testify as an expert despite her lack of expertise in Alaska Native culture. 

b.	 Thea has waived her argument that Morrison was 

disqualified from testifying as an ICWA expert because 

of her status as an employee of OCS. 

Thea’s brief contains a single sentence alleging that Morrison should have 

been precluded from testifying as an ICWA expert because, as an OCS employee, she 

“lacked the impartiality and outside neutrality that the ICWA expert is supposed to 

provide.” Thea points to nothing in the record, nor does she cite any legal authority, to 

support this allegation. 30 As such, Thea’s argument is inadequately briefed and thus is 

28 Thea does not challenge Morrison’s expertise in the specified areas, so we 

do not review her qualifications to testify as an expert on those topics. 

29 See, e.g., Christina J. v. State, Dep’t of Health & Soc. Servs., Office of 

Children’s Servs., 254 P.3d 1095, 1111 (Alaska 2011); Lucy J. v. State, Dep’t of Health 

& Soc. Servs., Office of Children’s Servs., 244 P.3d 1099, 1118 (Alaska 2010); Marcia 

V., 201 P.3d at 503; L.G., 14 P.3d at 953-54. 

30 In support of her allegation, Thea cites an online publication of the Native 

American Rights Fund. That publication contains a “Practice Tip” discouraging the use 

of an employee of an agency seeking termination of parental rights as an expert witness 

for ICWA purposes, but the practice tip explicitly concedes that using such an employee 

as an ICWA expert is “not prohibited by the ICWA.” NATIVE AM. RIGHTS FUND, A 

PRACTICAL GUIDE TO THE INDIAN CHILD WELFARE ACT (online ed. rev. Sept. 2011) 

Practice Tip at Topic 14, Expert Witnesses, Question 14.7, 

http://narf.org/icwa/faq/expert.htm#Q7 (emphasis added). 

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deemed waived.31 

2. The superior court’s finding that the children would suffer 

harm if returned to Thea’s custody was supported by sufficient 

evidence. 

Thea argues that the superior court’s finding that her continued custody 

would likely result in serious harm befalling the children was not supported by sufficient 

evidence. She limits her argument to complaints about Morrison’s expert testimony, 

averring specifically that the testimony was defective because (1) Morrison based her 

testimony on a review of the OCS file and trial exhibits, having had no personal 

interactions with Thea or the children, and (2) Morrison’s testimony was “overly 

generalized” and not grounded in the specific facts and issues of this case. Both 

arguments are based on this court’s decision in C.J. v. State, Department of Health & 

Social Services32 and its companion case, J.J. v. State, Department of Health & Social 

Services, Division of Family & Youth Services.33 Neither argument has merit. 

As to the first argument, it is well settled that an ICWA expert may testify 

based on a review of documents in the record, without having had any personal contact 

with the parties, as long as the witness’s testimony is grounded in the facts and issues 

specific to the case before the court.34 Thea’s argument is based on an erroneous 

interpretation of our decisions in C.J. and J.J. and is an argument that we have repeatedly 

31 See Frank E. v. State, Dep’t of Health & Soc. Servs., Div. of Family & 

Youth Servs., 77 P.3d 715, 719 n.14 (Alaska 2003) (citing Martinson v. ARCO Alaska, 

Inc., 989 P.3d 733, 737 (Alaska 1999)). 

32 18 P.3d 1214 (Alaska 2001). 

33 38 P.3d 7 (Alaska 2001). 

34 See, e.g., Sandy B. v. State, Dep’t of Health & Soc. Servs., Office of 

Children’s Servs., 216 P.3d 1180, 1192 (Alaska 2009); Ben M. v. State, Dep’t of Health 

& Soc. Servs., Office of Children’s Servs., 204 P.3d 1013, 1020 (Alaska 2009). 

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rejected in the past.35 

As to the second argument, the expert’s testimony in this case was 

grounded in the specific facts and issues facing this family. Witnesses other than 

Morrison established that Thea struggled with a longstanding alcohol abuse problem that 

was sometimes coupled with domestic violence; that she was locked in a repetitive cycle 

of abusing substances, participating in treatment, experiencing a period of sobriety, and 

relapsing; that she had twice been convicted of driving while intoxicated with her 

children in her car; and that her potential for future relapses into abusive behaviors was 

high. Thea does not challenge this testimony. 

Morrison then testified that children living with a parent who exhibited this 

conduct were at risk of harm. She testified that such a lifestyle is particularly alarming 

for children who are present when their parent is arrested for DUI or who witness the 

parent’s involvement in domestic violence, both of which occurred in this case. She 

noted that issues facing children who live with such parents include not “know[ing] 

when their mom’s going to be sober, if the mom’s going to be able to take care of them, 

if they’re going to be safe, if mom’s going to make sure they have all their needs met.” 

In addition, because parents who are in denial about an unsafe situation are unlikely to 

protect their children from the dangers it poses, Morrison expressed particular concern 

about Thea’s recent statement that she did not require treatment. In summary, Morrison 

testified that given this family’s history, if Zach and Abbie were returned to Thea’s care, 

they would be likely to suffer serious emotional or physical harm. 

In reviewing a trial court’s finding that a parent’s continued custody poses 

a future risk of harm to a child, we are mindful that “ICWA does not require that the 

E.g., Ben M., 204 P.3d at 1020; Marcia V. v. State, Office of Children’s 

Servs., 201 P.3d 496, 507 (Alaska 2009); J.A. v. State, DFYS, 50 P.3d 395, 401 (Alaska 

2002). 

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experts’ testimony provide the sole basis for the court’s conclusion; ICWA simply 

requires that the testimony support that conclusion.”36 Regarding expert testimony in 

particular, “the issues are whether the expert disregarded or was unaware of contrary 

evidence, and whether the testimony was so vague and generalized that the trial court 

clearly erred in according weight to it.”37 Thea points to no evidence to contradict the 

lay testimony establishing her ongoing substance abuse and her relapse potential, and her 

conclusory statement that Morrison’s testimony was “overly generalized” is not 

supported by the record. Aggregating the testimony of all the witnesses, substantial 

evidence demonstrated beyond a reasonable doubt that Thea’s pattern of substance abuse 

was unlikely to change, and that those behaviors would place a child in Thea’s custody 

at serious risk of physical or emotional damage. Thus, the superior court did not err in 

finding, beyond a reasonable doubt, that Zach and Abbie would likely suffer serious 

physical or emotional damage if Thea were to retain custody of them. 

C.	 The Superior Court Did Not Err In Finding That Termination Of 

Thea’s Parental Rights Was In Zach’s And Abbie’s Best Interests. 

Alaska Statute 47.10.088(c) requires that a court considering whether to 

terminate a parent’s parental rights must “consider the best interests of the child.” 

Alaska Child in Need of Aid Rule 18(c)(3) provides that before a court may terminate 

a parent’s rights, the court must find “by a preponderance of the evidence that 

termination of parental rights is in the best interests of the child.” Neither the statute nor 

the rule defines best interests, but guidance is found in AS 47.10.088(b), which lists five 

factors “relating to the best interests of the child” that a court may evaluate in 

determining whether a parent has timely remedied conduct or conditions that endanger 

36 E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 992 (Alaska 

2002). 

37 Ben M., 204 P.3d at 1020. 

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a child.38 The factors are not exclusive, nor is consideration of each factor mandatory. 

In addition, we have noted that the “best interests” finding required by AS 47.10.088(c) 

and CINA Rule 18(c)(3) requires a more comprehensive judgment than does determining 

whether the parent has timely remedied endangering conduct or conditions.39 

Nevertheless, in an appropriate case, the factors listed in AS 47.10.088(b) provide a 

logical beginning for a trial court’s consideration of best interests under AS 47.10.088(c). 

Here, the trial court addressed each of the listed factors. First, given Thea’s 

history, the court found little likelihood that the children could be returned to her care 

“within a reasonable time based on their age and need.” 40 Second, the court found that 

although Thea had participated in substance abuse treatment programs multiple times 

38 AS 47.10.088(b) provides: 

In making a determination under (a)(2) of this section, 

the court may consider any fact relating to the best interests 

of the child, including 

(1) the likelihood of returning the child to the parent 

within a reasonable time based on the child’s age or needs; 

(2) the amount of effort by the parent to remedy the 

conduct or the conditions in the home; 

(3) the harm caused to the child; 

(4) the likelihood that the harmful conduct will 

continue; and 

(5) the history of conduct by or conditions created 

by the parent. 

39 Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 186 (Alaska 2008). 

40 In making this determination, the court took into account that the treatment 

program Thea began during the trial would require 90 days of residential treatment, 

followed by nine months of aftercare. 

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over the course of the case, her motivation was “simply to make the Court happy.” She 

disagreed with the recommendations of her current treatment provider, her probation 

officer, and OCS that she required residential treatment, and she was in denial about the 

period of sobriety she had demonstrated leading up to the termination trial. Third, the 

court found that Thea’s behaviors had harmed the children by causing them trauma, 

subjecting them to removal from their home three different times, requiring them to 

experience their mother’s incarceration, experiencing physical danger at the hands of an 

intoxicated driver, and, at least as to Zach, being exposed to domestic violence. Fourth, 

the court analyzed Thea’s history and found that Thea had neither remedied, nor made 

significant progress in remedying, her substance abuse addiction and that given her 

history, “there [was] a . . . strong likelihood that this harmful conduct [would] continue.” 

Finally, the superior court recounted in detail Thea’s history of harmful conduct. 

We have held that “a superior court may consider ‘any fact relating to the 

best interests of the child’ in its best-interests analysis,”41 and that the superior court need 

not accord a particular weight to any given factor.42 The superior court’s analysis in this 

case conformed to this approach. The court did not stop its analysis with the 

AS 47.10.088(b) factors but went on to note that Zach and Abbie, who had been 

traumatized and were in need of trusting relationships, were presently living with Thea’s 

sister and her husband in a safe and protective preadoptive relationship. The court 

observed that the children were reported to be doing well in this home. The court noted 

41 Hannah B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 289 P.3d 924, 932 (Alaska 2012) (quoting Doe v. State, Dep’t of Health & Soc. 

Servs., Office of Children’s Servs., 272 P.3d 1014, 1025 (Alaska 2012)). 

42 Id. at 933 (quoting Doe, 272 P.3d at 1025). 

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that the children had been in OCS’s custody for 29 months, a significant portion of their 

lives, and that further delays in permanency would cause them additional trauma.43 

The superior court also considered Thea’s conduct, noting that even though 

she understood that OCS would not tolerate her abuse of substances around her children, 

she physically endangered the children by driving intoxicated with them in her car. The 

court noted that not only had Thea failed to remedy her substance abuse behavior but she 

had made no significant progress toward that end and had demonstrated that she was not 

inclined to change those behaviors. The superior court observed that Thea’s ongoing 

abusive behaviors were likely to result in the children suffering serious emotional or 

physical damage. 

This case resembles J.H. v. State, Department of Health & Social Services, 

44 

in which we affirmed the superior court’s best interests finding based on evidence that 

the mother had repeatedly returned to using drugs following her unsuccessful attempts 

at treatment. In J.H., the mother, like Thea, “remained at high risk of returning to 

substance abuse.”45 There, we noted that there was “little doubt that a relapse by [the 

mother] would have placed [the child] at risk had she been returned to her mother’s 

43 Additional support for the trial court’s finding is provided by social worker 

Gardner’s testimony that “the children are in dire need of permanency . . . . They should 

just be happy and peaceful and know a stable lifestyle. Have to worry about little kid 

problems like studying and stuff instead of where is my mom, is she in jail or is she 

relapsed,” and by expert witness Morrison’s testimony that the children would be at risk 

if they did not quickly achieve permanency, because they had been unsettled for so much 

of their lives, and “when you’re unsettled and you don’t know where you’re going to be, 

you don’t know if you’re going back, you don’t know if you’re going to stay, you don’t 

know who your parents are going to be and who’s going to take care of you, that’s a 

pretty scary situation to be in.” 

44 30 P.3d 79, 87 (Alaska 2001). 

45 Id. 

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home.”46 And in Hannah B., we recognized that a child’s need for permanence and 

stability should not be sacrificed indefinitely in order to allow the child’s parents to 

rectify circumstances that placed their child in danger.47 

The evidence presented to the superior court supported the court’s finding 

that termination of Thea’s parental rights, in order to free Zach and Abbie for adoption, 

was in the children’s best interests. The superior court thus did not err in making that 

finding by a preponderance of the evidence. 

The dissent argues that the superior court erred because additional evidence, 

not presented to the court, might have demonstrated that a permanency goal other than 

adoption — presumably a goal such as guardianship or placement with a fit and willing 

relative — would have better served the children’s interests. The dissent is correct in 

noting that state and federal laws allow CINA cases to be resolved through permanency 

outcomes other than reunification or adoption. 48 But as we have held, the law does not 

require a court, in the context of a termination proceeding, to consider alternative 

outcomes, “except to the extent that the statute requires the court to order an arrangement 

that is in the child’s best interest.”49 

Indeed, in Dashiell R. v. State, Department of Health & Social Services, 

Office of Children’s Services, 

50 we expressly rejected a father’s argument that it was error 

to find that termination of his parental rights was in his children’s best interests because 

46 Id. 

47 289 P.3d at 933 (quoting Kent V. v. State, Dep’t of Health & Soc. Servs., 

Office of Children’s Servs., 233 P.3d 597 (Alaska 2010)). 

48 See, e.g., AS 47.05.065, .10.080(c) & (l); 42 U.S.C. § 675(5)(C) (2006). 

49 C.W. v. State, Dep’t of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001). 

50 222 P.3d 841 (Alaska 2009). 

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the children would likely remain with their paternal grandparents even if the father’s 

parental rights were terminated. We concluded that because the grandparents’ custody 

would be temporary, the children would remain “under the cloud of continuing 

uncertainty, [and] the children’s need for permanence and security would not be met.”51 

Similarly, in Hannah B., we rejected the mother’s argument that the superior court’s best 

interests finding was erroneous because the child was placed with his maternal 

grandmother, who supported reunification with the mother.52 In affirming the superior 

court’s best interests finding, we noted that it was “very uncertain whether Hannah 

would be able to assume responsibility for Jacob, given the significant amount of 

treatment remaining and her pattern of relapse following residential treatment.”53 Like 

Hannah, Thea has demonstrated a repeated pattern of relapse following treatment and, 

at a minimum, has a significant amount of treatment remaining before reunification could 

even be considered. 

Thea asserts that in some cases a child’s best interests require preserving 

rather than severing ties to an unfit parent. While such cases may exist, this is not one 

of them. Zach and Abbie have been in OCS’s custody — in effect, in limbo — for nearly 

two and one-half years, waiting for Thea to act responsibly and step into her role as their 

parent. These children are not teenagers, on the verge of making their way in the 

world.54 They are children who require the guidance and direction that is best provided 

51 Id. at 851. 

52 289 P.3d at 933-34. 

53 Id. at 934. 

54 We note that while Zach was 12 years old at the time Thea’s rights were 

terminated, he was only nine when Thea’s conduct caused OCS to remove him from her 

care. 

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in a loving, stable family headed by functioning, trustworthy parents. After years of 

living in uncertainty, these children are finally in a position to be adopted into a 

permanent family with competent, stable parents, a resolution not available to them under 

any permanency goal other than adoption. 55 Preserving Thea’s parental rights, in order 

to ensure maintenance of the children’s ties to her, would continue to expose the children 

to Thea’s potentially dangerous behaviors and would deprive them of the chance to 

become part of a permanent, stable family. As the superior court noted, trust is very 

important for children, as is a sense of permanency, and the lack of this trust and stability 

may be traumatic and may heighten the risk that a child will engage in antisocial 

behaviors. 

The dissent argues that the superior court lacked pertinent information 

when it found that termination of Thea’s parental rights was in her children’s best 

interests. We appreciate the concern that the trial court did not hear about the children 

from their former or current caregivers or, more importantly, from their therapist. Such 

testimony, when available, is likely to result in a better-informed decision by a trial court 

called upon to decide whether to terminate a parent’s rights. But here, the superior court 

based its decision on a preponderance of all of the evidence presented to it.56 OCS 

55 Adoption requires termination of Thea’s parental rights. See 

AS 25.23.130(a)(1); AS 47.10.088(a). 

56 The dissent claims that evidence in the record demonstrates that Zach and 

Abbie were “strongly” or “extremely” bonded to Thea “just before” the termination trial, 

and that Zach “continually” expressed a fervent desire that the family be kept together. 

Yet the evidence cited by the dissent consists primarily of a permanency report authored 

by the children’s guardian ad litem nearly a year and a half before the termination trial 

was held. In her more recent report, authored six months before the trial, the guardian 

ad litem stated that while the children “remain bonded with their mother . . . [t]hey 

cannot continue to wait” for her to become ready to parent them. This report went on to 

(continued...) 

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presented sufficient evidence to demonstrate that termination of Thea’s rights would 

serve her children’s best interests. Thea declined the opportunity to present any contrary 

evidence despite her current argument that such evidence was indispensable to the trial 

court’s decision. We thus cannot conclude that based on the record before it, the trial 

court clearly erred in determining that termination of Thea’s rights was in the best 

interests of Zach and Abbie. 

Compelling evidence was presented to the trial court that continued custody 

of the children by Thea would likely result in serious emotional or physical damage 

befalling them. Evidence was also presented that termination of their parent’s rights 

would provide the children with the opportunity to be welcomed into a permanent, stable 

family. Absent evidence to the contrary, termination of Thea’s parental rights was in the 

best interests of the children. The trial court’s finding is affirmed. 

D. Thea’s Remaining Arguments Are Without Merit. 

Thea’s brief contains several arguments in addition to those addressed 

above. She argues that the superior court erred by failing to solicit, sua sponte, 12-yearold Zach’s preferences regarding termination of Thea’s rights or to appoint counsel to 

represent Zach in the termination proceedings. But these matters, which are properly 

within the superior court’s discretion, were not raised in that court. Thea has not alleged 

or demonstrated that the superior court committed plain error on these matters, so these 

arguments are not properly before us. 

56(...continued) 

recommend that Thea’s parental rights be terminated, so that Zach and Abbie could be 

adopted. In reaching this recommendation, the report stressed that these children “need 

permanency. They need stability, consistency and to always be safe — they cannot 

worry if their mother is going to start drinking again and if they are going to be removed 

from her again.” 

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Finally, Thea argues that the trial court erred in allowing the children’s 

guardian ad litem, a non-attorney staff member of the state Office of Public Advocacy, 

to be “represented” by an OPA staff attorney during the termination proceedings. We 

reject this argument, noting that OPA, not a named individual, was appointed to act as 

the children’s guardian ad litem in these proceedings. This is in accord with state law.57 

We have reviewed the record and have found no impropriety in the actions of either OPA 

representative. 

VI. CONCLUSION 

For the reasons discussed above, the decision of the superior court 

terminating Thea’s parental rights to her children, Zach and Abbie, is AFFIRMED. 

57 AS 25.24.310(c), 47.10.050(a). 

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CARPENETI, Justice, dissenting. 

I disagree with today’s opinion because the State provided the trial court 

with virtually no specific, particularized information concerning (1) the children who 

were before the court and (2) whether termination of their mother’s parental rights was 

in their best interests. This failure left the court in an information vacuum which made 

it impossible for the court to make an informed decision about whether termination was 

in these children’s best interests. I would therefore remand for the taking of evidence 

specific to Zach and Abbie’s particularized situations, including the extent to which they 

have bonded with their mother, their current needs and developmental states, and (at least 

as to Zach) their preferences in the matter. 

Zach and Abbie, the children before the court, lost their father to cancer in 

2008. At the time of trial they were not infants but were children who had passed the age 

that, according to the legislature, is most critical to parental bonding.1

 Both children, and 

especially Zach, had already formed strong bonds with their mother. The guardian ad 

litem’s Permanency Report of April 14, 2010 — about 17 months before the termination 

trial — said this about Zach’s bonding with his mother: 

[Zach] is very attached to his mother and 

continues to do well with her close by — 

regular contact, interaction on a daily basis, her 

participation in his school and extracurricular 

activities, etc. With the loss of his father, he 

has continually expressed his concern to the 

In AS 47.05.065(5)(A) the legislature found that “children undergo a 

critical attachment process before the time they reach six years of age.” Zach was 12 at 

the time of the trial, while Abbie was six. 

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1 
 

 

 

 

 

GAL that “my family” (himself, his mother and 

sister) all stay together. 

(Emphasis added.) The guardian ad litem’s Disposition Report of January 2010 noted 

that the children had been placed with family friends who were very close neighbors and 

that this allowed the children to remain in close proximity to their mother. It noted that 

the children “need stability, consistency and permanency with their mother as quickly 

as possible — they share an extremely strong bond and this needs to be nurtured as a 

family unit.” (Emphasis added.) The March 2011Permanency Report from the guardian 

ad litem — six months before the termination trial — reported that “[b]oth children 

remain bonded with their mother.” 

Despite the overwhelming evidence that Zach and Abbie shared strong 

bonds with their mother, the State presented no evidence to the superior court as to the 

effect of terminating their mother’s parental rights on the children. Moreover, a review 

of the testimony presented to the court shows that the State’s case was almost entirely 

based on generalizations: 

•	 The State’s expert had never met the children, had never met the 

mother, and had never observed her with her children. The expert’s 

testimony was in effect based on a review of the record. While we 

have endorsed the idea that expert testimony may be based on a 

2 record review, the record review here was remarkably skimpy. The

expert conceded that she “didn’t read a lot about the kids,” while 

stating that they were in a secure placement. Upon cross2 See C.J. v. State, Dep’t of Health & Soc. Servs., 18 P.3d 1214, 1218 (Alaska 

2001) (declining to hold that a meeting between the expert and the parties to the 

termination proceeding is necessary in every case, but reversing termination because the 

expert’s opinion was not sufficiently based on the particular facts of the case); J.J. v. 

State, Dep’t of Health & Soc. Servs., 38 P.3d 7, 9-10 (Alaska 2001) (same). 

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examination, she admitted that she had not read anything else about 

the children other than that they were in a secure placement. The 

expert commented on the amount of time the children were out of 

the home in placement, but admitted that she did not know that for 

some of that time they lived with their mother or were cared for by 

her. (Indeed, the State admitted at trial that the children were in their 

mother’s care for enough of the time that the children were in foster 

care that the State sought to recover part of its foster care payments 

from the foster parents for that time.) The expert was unaware of 

the amount of time the children had visited with their mother, and 

she did not know how frequently visitation took place, or how the 

visits went. 

•	 The one social worker called by the State was not the assigned 

social worker, but was instead her supervisor. Almost all of her 

testimony consisted of generalizations about what kinds of harmful 

effects on children might be expected by the particular acts of 

parental neglect that were found in this case. While her testimony 

was strong in a general sense, it could not establish that these 

children suffered the harmful effects that might generally be 

expected. 

In comparison with the generalizations upon which the State relied, the 

record contains substantial evidence that these children, especially Zach, were extremely 

bonded with their mother. The evidence showed that (1) Zach was very attached to his 

mother 17 months before the trial and that this attachment continued through the time of 

trial; (2) Zach had continually expressed his desire that his family (himself, his mother, 

and his sister) all stay together; (3) Abbie shared an extremely strong bond with her 

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mother; and (4) this bond continued up until the trial. Yet no evidence was produced 

at the trial as to the effect of a termination of parental rights on Zach and Abbie.3

 In light 

of this evidence of the strong connections between the children and their mother, the 

superior court should have weighed the loss of that bond in the best interests analysis. 

But it was unable to do so, because the State had not presented any evidence of the effect 

that termination of parental rights would have on the children. 

Other than generalities, the court did not hear any testimony about these 

particular children, their needs and desires, their developmental states, or their progress 

in therapy. The court heard testimony from the social worker that termination can, 

depending on the child, result in trauma to a child, but the court heard no testimony about 

how these particular children might be impacted by termination of their mother’s parental 

rights. The testimony and the trial court’s findings in this case appear to have been based 

on the best interests of children in general, rather than on the best interests of Zach and 

Abbie in particular. The State’s failure to present the court with evidence about the 

effect of termination on these particular children points up what I believe to be the legal 

error here: the reduction of the best interests finding to mere surplusage. 

The legislature has set out five findings that a superior court must make 

before parental rights can be terminated: (1) that the child is in need of aid; (2) that the 

parental conduct remains unremedied; (3) that the State has made reasonable (or, in the 

case of Indian children, active) efforts to reunite the family; (4) that serious harm to the 

child will likely occur without termination; and (5) that termination is in the best interests 

of the child.4 The testimony and the trial court’s best interests findings in this case were 

3 Indeed, when counsel for the mother attempted to bring before the court 

evidence of the children’s preference at the time of trial, the State successfully resisted. 

4 See AS 47.10.011; AS 47.10.086; AS 47.10.088. 

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based on the best interests of children in general, but not these particular children. But 

if courts were justified in determining only the best interests of “generic children” in 

making a best interests finding, it would appear that whenever all the other termination 

findings are satisfied — a child in need of aid finding, parental conduct remaining 

unremedied, reasonable efforts, and a substantial risk of harm to the child without 

termination — the best interests of the generic child will always be served by 

termination. But because we presume that the legislature intended that every part of a 

5 statute have some purpose, force, and effect, the court must look at the best interests of

the particular children before it.6 That did not happen here. 

Given the specific evidence in the record that these children were closely 

7 bonded to their mother just before the termination trial began and the lack of evidence

on this subject at trial, along with the lack of evidence regarding the children’s particular 

5 See Mechanical Contractors of Alaska, Inc. v. State, Dep’t of Pub. Safety, 

91 P.3d 240, 248 (Alaska 2004) (holding that when court engages in statutory 

construction it will presume every provision of statute “to have some purpose, force, and 

effect, and that no . . . provisions are superfluous.”). 

6 Perhaps in the case of an infant removed from a parent at or close to birth, 

who has had no opportunity to bond with the parent, a “generic child” analysis might 

suffice. But in the case of a 12-year-old like Zach, who was “very attached” to his 

mother and who “continually expressed his concern . . . that [his] family all stay 

together,” a generic analysis is insufficient. 

7 The strongest evidence in this regard pertains to Zach. But the evidence 

concerning Abbie is also substantial: When she was almost five, she was described as 

having “an extremely strong bond” with her mother, which remained unchanged when 

she was a month short of six. And in light of the legislative findings contained in 

AS 47.05.065(5)(a) — “children undergo a critical attachment process before the time 

they reach six years of age . . .” — the superior court should have been provided updated 

information regarding Abbie’s bonding with her mother at the time of the termination 

trial. 

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situations, including the preference of at least Zach in the matter,8 I believe that we 

should vacate the superior court’s best interest finding and remand so that the court can 

be provided with specific evidence pertaining to these children’s best interests. Such 

evidence should include testimony by an expert who is at least well-versed in the facts 

pertaining to these children, and preferably one who has actually met Zach and Abbie 

and who can give expert testimony on the effect of termination on them: What is the 

state of their bonds with their mother? How will termination of the parent-child 

relationship affect their development? Are there permanency options available that 

might better serve the interests of these children than termination? It could include 

evidence by a social worker who has actually worked with these children, who knows 

their outlook and preferences, and can provide this information to the court. Armed with 

such information, the court could make an evidence-based decision on these children’s 

best interests. 

In evaluating what is in Zach and Abbie’s best interests, the court would 

have options other than termination or reunification of the children with their mother. 

Although the testimony of the social worker suggested that these were the only options, 

the choice in a case such as this is not so simple. Federal and state law contemplate 

permanency outcomes in addition to termination or reunification, including guardianship 

and placement with a fit and willing relative. 9 We have stated that a trial court need not 

8 Cf. AS 25.23.040(a)(5) (requiring court to obtain consent of minor child to 

adoption if child is ten years of age or older unless court dispenses with minor’s consent 

in best interests of minor). 

9 With regard to federal law, see 42 U.S.C. § 675(5)(C) (listing reunification, 

adoption, legal guardianship, placement with a fit and willing relative, and “another 

planned permanent living arrangement” as possible permanency outcomes). With regard 

to state law, see AS 47.10.083 (gradual reunification); AS 47.10.084 (legal custody and 

(continued...) 

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consider such arrangements in the course of termination proceedings “except to the 

extent that [AS 47.10.088] requires the court to order an arrangement that is in the 

child’s best interest.”10 This is such a case. While we have, on numerous occasions, 

reiterated this holding in rejecting appellants’ claims that a trial court erred in failing to 

consider or order guardianship in lieu of termination, in each such instance the trial court 

had, at some point, considered whether guardianship was an appropriate permanency 

outcome for the child, or had at least examined the particulars of the child’s situation and 

found that continued contact between the child and the parent was not justified given the 

particular facts of the case.11 In this case, the trial court conducted no such analysis or 

examination. Today’s opinion also relies on J.H. v. State, Department of Health and 

Social Services12 and Hannah B. v. State, Department of Health and Social Services, 

9

(...continued) 

guardianship); AS 47.10.080(c)(2) (placement with a fit and willing relative). 

10 C.W. v. State, Dep’t of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001). 

11 See Doug Y. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 243 P.3d 217, 219 (Alaska 2010) (child wanted father to go to jail “so his dad 

would quit beating him”); A.J. v. State, Dep’t of Health & Soc. Servs., Div. of Family & 

Youth Servs., 62 P.3d 609, 615 (Alaska 2003) (parent had “history of interfering with 

the children’s placements” justifying termination over guardianship); Lucretia G. v. 

State, Dep’t of Health & Soc. Servs., 2006 WL 668725 at *6 (Alaska 2006) (unpublished 

opinion) (child regarded further contact with mother as “cause for alarm”); Matthew B. 

v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 2005 WL 628809 at 

*4 (Alaska 2005) (unpublished opinion) (superior court specifically considered 

guardianship but found that proposed guardian was unavailable for at least 12 months); 

Christopher D. v. State, Dep’t of Health & Soc. Servs., 2004 WL 243556 at *3 (Alaska 

2004) (unpublished opinion) (guardianship not in best interests of severely emotionally 

disabled children dealing with attachment disorders who needed stable home 

environment). 

12 30 P.3d 79 (Alaska 2001). 

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Office of Children’s Services13 as cases that resemble Thea G.’s case. But the children 

in J.H. and Hannah B. were only three years old and four years old respectively, and 

those cases clearly did not involve the types of mature bonding issues and expressed 

preferences as does the present case. 

I agree with the superior court and today’s opinion that Zach and Abbie’s 

mother has failed them terribly in many ways and that she is not now fit to act as their 

parent. But that is not the question before us. The question is whether it is in the best 

interests of these children — both of whom are strongly bonded with their mother and 

one of whom has expressed the fervent desire that what remains of their family following 

their father’s death be “kept together” — to sever the parental bond without considering 

the effect of doing so on the children, or even hearing from them, and without 

considering alternatives to termination. Before that decision can be made, the superior 

court should be provided direct evidence on this issue so that it can make an informed 

decision on what is in the best interests of these children. Because the court was not 

provided with that information, I respectfully dissent. 

13 289 P.3d 924 (Alaska 2012). 

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