Jude M. v. State, Department of Health & Social Services, Office of Children's Services
394 P.3d 543
| Alaska | 2017Background
- Child Dana (born 2008) is an Indian child under ICWA; OCS removed her after parental neglect and placed her with maternal relatives (the Winsomes) out of state.
- Father Jude has a long history of inappropriate sexual relationships, was convicted in federal court for transporting child pornography, incarcerated, underwent sex-offender treatment, and was assessed as low–to–moderate recidivism risk.
- Two termination trials: the superior court found most termination elements satisfied but declined to terminate Jude’s parental rights because likelihood of serious harm was not proven beyond a reasonable doubt.
- OCS then sought a long-term guardianship for the Winsomes under AS 13.26.045; the court found (1) active efforts were made and unsuccessful, (2) by clear and convincing evidence (including expert testimony) return to Jude would likely cause serious harm, and (3) guardianship was in Dana’s best interests.
- On appeal the court considered whether the guardianship statute applied, whether ICWA required proof beyond a reasonable doubt, whether active efforts were satisfied, and whether the likelihood-of-harm finding had sufficient expert support.
Issues
| Issue | Plaintiff's Argument (Jude) | Defendant's Argument (State/OCS) | Held |
|---|---|---|---|
| Authority to appoint long-term guardian under AS 13.26.045 | CINA status does not "suspend" parental rights; Jude retained residual parental rights so statute does not apply | Suspension of custodial rights occurs when OCS has legal custody of a CINA child, enabling guardianship under AS 13.26.045 | Court: CINA custody suspends parental rights of custody; court had statutory authority to appoint guardian |
| Whether guardianship was a de facto termination triggering ICWA’s beyond-a-reasonable-doubt standard | Guardianship here is effectively termination; thus higher burden should apply | Guardianship is a foster-care placement under ICWA and is subject to clear-and-convincing standard with expert testimony requirement | Court: Guardianship is a foster-care placement under ICWA; clear-and-convincing burden (not beyond a reasonable doubt) applies |
| Whether "active efforts" requirement under ICWA was met | OCS’s efforts were insufficient and OCS should not rely on outside entities' programs; efforts succeeded so guardianship not needed | Active efforts may include services by other agencies (e.g., federal treatment center); overall record shows active efforts though not perfect | Court: Active efforts standard satisfied; considering non-OCS services (e.g., Devens treatment) was proper; whether efforts were "unsuccessful" must be reconsidered on remand alongside harm finding |
| Whether clear-and-convincing evidence (including expert testimony) supports likelihood of serious harm if Dana returned to Jude | Trial court improperly relied on Jude’s history and non-expert testimony to find risk to Dana; experts (Dr. Lazur, Dr. Blair) largely assessed low–to–moderate recidivism and said risk to Dana was essentially nonexistent | Court may aggregate expert and non-expert evidence (therapist testimony re: caregiver capacity, attachment, and trauma) to assess harm; risk significance judged in context | Held: Some findings (caregiving incapacity, disruption of attachment) are supported, but the court erred in relying on risk-to-Dana drawn from Jude’s sexual history where experts said risk to Dana was negligible; remand required to reassess whether clear-and-convincing, expert-supported evidence remains to support guardianship |
Key Cases Cited
- Emma D. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 322 P.3d 842 (Alaska 2014) (standard of review and CINA precedent)
- Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 309 P.3d 850 (Alaska 2013) (standard for likelihood-of-harm findings)
- A.M. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 945 P.2d 296 (Alaska 1997) (active efforts may include institutional treatment programs)
- Terry S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 168 P.3d 489 (Alaska 2007) (guardianship as foster-care placement under ICWA)
- D.H. v. State, 723 P.2d 1274 (Alaska 1986) (de facto termination of visitation rights in out-of-state placement context)
- V.S.B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth Servs., 45 P.3d 1198 (Alaska 2002) (compliance with treatment does not alone show problems are remedied)