In the Matter of the Protective Proceedings of: Baron W., a Minor ( 2021 )

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@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Protective )
Proceedings of ) Supreme Court No. S-17916
)
BARON W., a Minor. )
)
)
) OPINION
)
) No. 7571 – November 19, 2021
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Lance Joanis, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Cecilia M. Aisha Tinker Bray, Assistant Attorney General,
Fairbanks, and Treg R. Taylor, Attorney General, Juneau, for
State of Alaska.
Before: Winfree, Maassen, Carney, and Borghesan, Justices.
[Bolger, Chief Justice, not participating]
CARNEY, Justice.
I. INTRODUCTION
The grandmother of an Indian child was appointed as the child’s guardian.
The Office of Children’s Services (OCS) took emergency custody of the child after the
grandmother admitted using methamphetamine and the child tested positive for the drug.
After working with the grandmother to address her drug use and other issues, OCS
petitioned to terminate the grandmother’s guardianship.
Following a hearing, the superior court found that termination of the
guardianship was in the child’s best interests and removed the grandmother as guardian.
The grandmother appeals, arguing that her removal violated the Indian Child Welfare
Act (ICWA)1 and that termination of the guardianship was not in the child’s best
interests. We affirm the superior court’s removal of the grandmother as guardian.
II. FACTS AND PROCEEDINGS
A. Initial Guardianship
Baron W.2 is the six-year-old child of Stacy W. and Darian R. Baron is an
enrolled member in Darian’s tribe; he is therefore an Indian child as defined by ICWA.3
From his birth until approximately May 2017, Baron lived with Stacy and
her mother, Cecilia M. Stacy then moved and left Baron in Cecilia’s care. Cecilia
asserts that Stacy left due to drug use. At some point Stacy was prohibited from
contacting Baron by a civil protective order and conditions of release in a criminal case.
In December 2017 Cecilia petitioned for guardianship of Baron, alleging
that Stacy was unable to take “care of herself let alone [her] child.” Stacy contested the
guardianship but she did not attend the evidentiary hearing. Cecilia testified that Stacy
continued to struggle with substance abuse, mental health issues, and homelessness.
Cecilia also testified about her own history of drug abuse but stated that she had been
1
25 U.S.C. §§ 1901-1963. ICWA establishes “minimum Federal standards
for the removal of Indian children from their families and [for] the placement of such
children in foster or adoptive homes which will reflect the unique values of Indian
culture.” 25 U.S.C. § 1902.
2
Pseudonyms have been used to protect the parties’ privacy.
3
See 25 U.S.C. § 1903(4) (“ ‘Indian child’ means any unmarried person . . .
under age eighteen and . . . either (a) a member of an Indian tribe or (b) . . . eligible for
membership . . . and . . . the biological child of a member.”).
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clean since March 2015. The court appointed Cecilia Baron’s guardian in September
2018.
B. Emergency Removal And Petition For Removal As Guardian
In July 2019, in response to a report that Cecilia was neglecting Baron,
OCS took emergency custody and filed an emergency petition alleging that Baron was
a child in need of aid (CINA). According to the petition, Stacy had again been living
with Cecilia and Baron, and engaging in drug use and domestic violence. Cecilia had
called Adult Protective Services requesting that Stacy be removed. The petition also
alleged that when caseworkers arrived, Cecilia admitted to using methamphetamine
regularly and discontinuing her medication for bipolar disorder. Caseworkers tested
Cecilia and Baron for methamphetamine and both tested positive. OCS alleged in the
petition that Baron had “been exposed to ongoing family violence and substance abuse”
and that emergency custody was necessary to protect him from “severe drug exposure,
neglect, and mental injury by his mother . . . and grandmother.”
OCS placed Baron in a foster home and proceeded with a CINA case
against his parents. In addition to the reunification efforts directed toward Baron’s
parents, OCS drafted and worked with Cecilia on a case plan. Her case plan required her
to obtain an integrated mental health and substance abuse assessment, substance abuse
treatment, random urinalysis testing (UAs), and a psychological evaluation, and to enroll
in parenting classes.
Cecilia’s mental health and substance abuse assessment resulted in a
recommendation of “medically monitored intensive inpatient services” at a level of care
not available in Alaska. Cecilia refused to leave Alaska for treatment, arguing that she
was already clean. OCS later offered Cecilia the opportunity for a reassessment, but she
was not reassessed.
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Cecilia participated in random UAs. After positive tests in July 2019, all
of Cecilia’s tests were negative for methamphetamine. Several tests were positive for
other controlled substances, which appears to have been due to prescribed medication.
The result of one test was deemed invalid, and she failed to show up for three tests.
Cecilia attended parenting classes and individual therapy. She also
underwent a psychological and parenting evaluation in November 2019. The
psychologist who evaluated her concluded that Cecilia had “serious psychological and
substance issues” and had “a markedly less than minimally adequate ability to parent her
grandson.”
In April 2020 OCS moved to terminate Stacy and Darian’s parental rights.
The following month OCS filed a motion to remove Cecilia as guardian.
C. Removal Hearing
The superior court held an extensive evidentiary hearing on the motion to
remove Cecilia as guardian over four days in July and September 2020. OCS began by
calling the psychologist who conducted Cecilia’s psychological evaluation and parenting
assessment. The psychologist testified that Cecilia “glossed over her history” and “ha[d]
difficulty identifying her child’s needs, being responsive to them, maintaining [a]
consistent routine, . . . [and] a . . . stable home.” But he also acknowledged that he did
not observe Baron, that Cecilia had done well by engaging with services, and that he had
not received any updated information since he had conducted the evaluation. Although
he noted that Cecilia was “attached to” and “love[d]” Baron, he concluded that she had
a “less than minimally adequate ability to provide for [his] safety and well-being.”
Among its witnesses OCS called the caseworker who had responded to the
initial report in July 2019. She testified that Cecilia had “really tangential thinking,” had
been letting Stacy in and out of the house while under the influence of drugs, and
admitted to recently using methamphetamine. OCS also called the administrator from
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the program that performed Cecilia’s and Baron’s drug tests. She testified that Baron’s
positive methamphetamine result indicated repeated exposure.
OCS’s final witness was the primary caseworker assigned to Baron’s case.
He testified about Cecilia’s case plan. He explained that Cecilia was “good about”
participating in UAs as well as assessments, therapy, and parenting classes. But he
testified that she never followed through on the recommended substance abuse treatment
and had once commented that she could easily “get around” the weekly testing.
Cecelia called a friend to testify on her behalf. The friend testified that she
was aware of Cecilia’s problems with Stacy and her own substance abuse, but asserted
that Cecilia had been “more than clean” for the last year. She also called the guardian
ad litem from the original guardianship case, who testified that during the time he was
involved, Cecelia did a good job as Baron’s guardian.
Cecilia testified that she used methamphetamine only infrequently to escape
her problems and had never used it around Baron, leading her to suspect that his positive
test was Stacy’s fault. She said that she told OCS about her relapse in order to get help,
that she “did what [OCS] told me to do,” and that she had been clean for 14 or 15 months
at the time of the hearing. Finally, Cecilia called her sobriety mentor who testified that
despite a “slip” in sobriety, Cecelia had been sober for over a year and was active in her
12-step program.
The court admitted various exhibits that Cecilia offered, including UA
results and Baron’s Head Start records. The Head Start records indicated that Baron
struggled with sensory issues and had trouble with toilet training while in Cecilia’s care.
The superior court removed Cecilia as Baron’s guardian. The court focused
on OCS’s motion to remove Cecilia as guardian but also made CINA findings. The court
found that Cecilia’s substance abuse and mental health issues posed a substantial risk of
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physical harm to Baron, that OCS had made “reasonable and active efforts” to reunite
Baron with Cecilia, and that those efforts were unsuccessful.
Cecilia appeals, arguing that her removal as guardian should have been
governed by the same protections as a termination of parental rights under ICWA,
including a finding of active efforts and “a definitive showing that there was a substantial
risk of serious harm to Baron, if the family were reunified.” Cecilia also argues that
terminating the guardianship was not in Baron’s best interests.
III. STANDARD OF REVIEW
“The applicability of the Indian Child Welfare Act . . . to this proceeding
is a question of law subject to our independent judgment.”4 “We will ‘adopt the rule of
law that is most persuasive in light of precedent, reason and policy.’ ”5 We review an
order granting a request to remove a guardian for abuse of discretion,6 and we review
underlying findings of fact for clear error.7
IV. DISCUSSION
A. The Removal Of Cecilia As Guardian Did Not Violate ICWA.
Cecilia argues that the superior court’s order removing her as Baron’s
guardian was a violation of ICWA because there was insufficient evidence to support the
4
J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998), overruled on other
grounds by Evans v. McTaggart, 88 P.3d 1078, 1084-85 (Alaska 2004).
5
Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
6
In re Tiffany O., 467 P.3d 1076, 1079 (Alaska 2020).
7
See Jude M. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs.,
394 P.3d 543, 550 (Alaska 2017).
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court’s findings that OCS had made active efforts to reunite Baron with his family8 and
that Baron would be “substantially harmed if returned to [his] grandmother’s care.”9
OCS responds that ICWA “does not apply to the actual legal proceeding at issue in this
appeal.”
Whether the ICWA protections sought by Cecilia apply to this proceeding
is a threshold issue. The parties agree that Baron is an Indian child and therefore entitled
to the protection of ICWA. But they dispute whether ICWA applies to this removal of
guardianship proceeding. Because Cecilia argues that the superior court’s decision
violated ICWA’s active efforts and serious harm requirements, the issue is whether those
specific ICWA requirements apply to this proceeding. We hold that they do not.
The requirement that the court find that active efforts have been made and
have proved unsuccessful is set forth in § 1912(d) of ICWA, which requires that:
Any party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall satisfy the court that active efforts have been made
to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.[10]
8
See 25 U.S.C. § 1912(d) (requiring proof “that active efforts have been
made to provide remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved unsuccessful”); see also
25 C.F.R. § 23.2 (2016) (defining active efforts as “affirmative, active, thorough, and
timely efforts . . . to maintain or reunite an Indian child with his . . . family”).
9
See 25 U.S.C. § 1912(e)-(f) (prohibiting foster placements or termination
of parental rights in an ICWA proceeding absent a determination that continued custody
by parent or Indian custodian is likely to result in serious emotional or physical damage
to the child).
10
25 U.S.C. § 1912(d).
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Thus, the active efforts requirement applies only to foster placements or termination of
parental rights.
ICWA’s requirement that the court find that continued custody of a child
is likely to result in serious emotional or physical damage is found in § 1912(e)-(f).
Section 1912(e) prohibits foster care placement “in the absence of a determination,
supported by clear and convincing evidence, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child.” Similarly,
§ 1912(f) prohibits termination of parental rights absent “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.” Like the active efforts
requirement, the serious harm requirement applies only to foster care placements or
terminations of parental rights.11
Because both the active efforts requirement and the serious harm
requirement apply only to terminations of parental rights and foster care placements, we
must decide whether the removal of the guardian constituted a termination of parental
rights or a foster care placement under ICWA.
1. Removal of a guardian is not a termination of parental rights
under ICWA.
ICWA defines “termination of parental rights” as “any action resulting in
the termination of the parent-child relationship.”12 Cecilia concedes that she is “not
technically Baron’s parent” but argues that she should be treated as Baron’s parent
11
25 U.S.C. § 1912(e)-(f).
12
25 U.S.C. § 1903(1)(ii).
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because Cecilia was “in practice, the only primary caretaker — the only ‘parent’ — he
has ever known.” In addition, she argues that she was Baron’s legal guardian and, under
AS 13.26.167, “has the powers and responsibilities of a parent who has not been
deprived of custody of a minor and unemancipated child . . . .” Her argument is both
unpersuasive and inapposite. Even though she had “the powers and responsibilities of
a parent,”13 Cecilia was not Baron’s parent and was not entitled to the protection of
Alaska’s CINA laws when OCS sought her removal as guardian.14
More importantly, however, Cecilia’s argument overlooks the plain
language of ICWA. ICWA explicitly defines “parent” as “any biological parent . . . of
an Indian child or any Indian person who has lawfully adopted an Indian child, including
adoptions under tribal law or custom.”15 Cecilia is not Baron’s biological parent, and she
has not adopted Baron. She is not Baron’s parent according to ICWA’s plain language.
Cecilia asserts that treating her differently than a parent is “extreme and
overly formalistic,” and “conflicts with the spirit and purpose of ICWA.” But when “a
statute’s meaning appears clear and unambiguous, . . . the party asserting a different
meaning bears a correspondingly heavy burden of demonstrating contrary legislative
intent.”16 ICWA contemplates that both guardians17 and extended family members
13
AS 13.26.167.
14
Compare AS 13.26.186(a), with AS 47.10.088 (providing fewer procedural
and substantive rights to guardians in removal proceedings than to parents in termination
proceeding).
15
25 U.S.C. § 1903(9) (emphasis added).
16
State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019) (quoting State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016)).
17
See 25 U.S.C. § 1903(1)(i) (defining “foster care placement” to include
(continued...)
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including grandparents18 may be present in an Indian child’s life, but it does not include
either in the definition of parent.19 And Cecilia does not provide us with any support for
her request to read ICWA’s definition of “parent” to mean anything other than what the
plain text says. In fact, if we interpreted ICWA to provide guardians the same
protections as parents, it would make it more difficult to reunite Indian children with
their parents after the appointment of a guardian — the exact opposite of Congress’s
stated policy to “promote the stability and security of Indian tribes and families.”20
Because Cecilia is not Baron’s parent under ICWA, her removal as guardian did not
constitute a termination of parental rights for purposes of ICWA protection.
2. Removal of a guardian is not a foster care placement under
ICWA.
ICWA defines “foster care placement” as an “action removing an Indian
child from its parent or Indian custodian for temporary placement in a foster home or
institution or the home of a guardian or conservator where the parent or Indian custodian
cannot have the child returned upon demand, but where parental rights have not been
terminated.”21
17
(...continued)
“temporary placement in . . . the home of a guardian”).
18
See 25 U.S.C. § 1903(2) (defining “extended family member” to include
grandparents).
19
See 25 U.S.C. § 1903(9) (defining “parent” to include biological and
adoptive parents).
20
See 25 U.S.C. § 1902.
21
25 U.S.C. § 1903(1)(i).
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Because foster placement, as defined by ICWA, involves removal from a
parent or Indian custodian,22 Cecilia must show that she is either Baron’s parent or his
Indian custodian. Cecilia is not Baron’s parent under ICWA. Nor is she Baron’s Indian
custodian. ICWA defines “Indian custodian” as “any Indian person who has legal
custody of an Indian child under tribal law or custom or under State law or to whom
temporary physical care, custody, and control has been transferred by the parent of such
child.”23 Although Cecilia was Baron’s guardian, she is not Indian.24 She therefore
cannot qualify as an “Indian custodian.” Cecilia’s removal as guardian does not
constitute a foster care placement as defined by ICWA.
Cecilia’s removal as Baron’s guardian does not qualify as either a
termination of parental rights or a foster care placement; it is therefore not subject to
ICWA’s active efforts or serious harm requirements. Because these requirements do not
apply, they were not violated, and Cecilia’s removal as guardian did not violate ICWA.
B. The Superior Court Did Not Abuse Its Discretion When It Found That
Removal Of Cecilia As Guardian Was In Baron’s Best Interests.
Cecilia also argues that the court abused its discretion by finding that
removing her as a guardian was in Baron’s best interests. OCS argues that the court did
not abuse its discretion.
Cecilia’s best interests argument combines the standard for removal of
guardianship and the standard for termination of parental rights. She argues that the
22
Id.
23
25 U.S.C. § 1903(6).
24
ICWA defines “Indian” as “any person who is a member of an Indian tribe,
or who is an Alaska Native and a member of a Regional Corporation . . . .” 25 U.S.C.
§ 1903(3). Cecilia is Caucasian and does not assert that she is a member of an Indian
tribe or Alaska Native regional corporation.
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court should not have “treat[ed] the matter as a garden variety guardianship” and that the
court failed to consider what Cecilia characterizes as “OCS’s passivity toward [her].”
But this case concerns the removal of a guardian, not the termination of parental rights
or foster care placement, so the superior court was not required to assess whether OCS’s
efforts crossed the line from passive to active.25 We therefore apply the standard for
removal of guardianship, not the standard for termination of parental rights.
1. The two-part standard used for removal of guardians of
incapacitated persons is also the standard for removal of
guardians of minors.
The process for removing a minor’s guardian is governed by AS 13.26.186,
which permits removal of a guardian “on the ground that removal would be in the best
interest of the ward.”26 The court may terminate guardianship “[a]fter notice and hearing
on a petition for removal.”27 We have not yet had occasion to look beyond that statutory
instruction for a standard for removal of a minor’s guardian. Both parties and the
superior court assumed that the standard used for removal of an incapacitated person’s
25
See 25 U.S.C. § 1912(e)-(f) (setting forth active efforts requirement for
terminations of parental rights and foster care placements in ICWA cases); see also
Jon S. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 212 P.3d 756, 763­
64 (Alaska 2009) (distinguishing between active and passive efforts in ICWA context).
26
AS 13.26.186(a).
27
AS 13.26.186(b).
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guardian is used for removal of a minor’s guardian,28 even though the two processes are
governed by different statutes.29 Both parties make the same assumption on appeal.
For incapacitated individuals “[t]he process for removing a guardian
requires that a petitioner first demonstrate that there has been a change in circumstances
since the guardian was appointed. Then ‘the court must decide whether the existing
appointment is in the ward’s best interests.’ ”30 The statute governing removal of a
minor’s guardian also requires that the removal be in the ward’s best interests.31
Therefore the best interests prong of the analysis also applies for guardians of minors.
A closer question is whether we should adopt the changed circumstances
requirement. Neither party addressed this question because, like the court, both assumed
that the same standard governed minor guardianships. Nor does Cecilia challenge the
changed circumstances determination. Nevertheless we address it in the interest of
establishing a consistent standard.
28
Both briefs cite cases concerning incapacitated persons’ guardians for the
standards governing removal of minors’ guardians; they appear to accept as a given that
the same standards will apply here. The superior court followed the standard set by a
case concerning an incapacitated person’s guardian, but also mistakenly cited
AS 13.26.286, which provides for removal of incapacitated persons’ guardians, rather
than AS 13.26.186, which concerns removal of minors’ guardians.
29
Compare AS 13.26.186 (procedure for removal of guardian of minor), with
AS 13.26.286 (procedure for removal of guardian of incapacitated person).
30
In re Tiffany O., 467 P.3d 1076, 1080 (Alaska 2020) (quoting H.C.S. v.
Cmty. Advoc. Project of Alaska, Inc., ex rel. H.L.S., 42 P.3d 1093, 1099 (Alaska 2002)).
31
AS 13.26.186(a) (“Any person interested in the welfare of a ward . . . may
petition for removal of a guardian on the ground that removal would be in the best
interest of the ward.”).
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The two-part standard for removal of guardians of incapacitated persons
was developed in H.C.S. v. Community Advocacy Project of Alaska, Inc.32 There we
recognized that the applicable statutes did not “specif[y] any procedure for seeking
removal,” so we established procedures.33 We “recognize[d] the potential for disputes
over appointing guardians and conservators and efforts to remove them” and the
emotional and financial cost of extended litigation, especially for families whose
“relationships [are] already strained by the ward’s circumstances.”34 Because similar
issues can arise within families following divorce and custody litigation, we followed the
two-part standard used to modify child custody awards, which requires first a showing
of changed circumstances, and then a determination of best interests.35 We reasoned that
just as the changed circumstances requirement discouraged “discontented parents from
continually renewing custody proceedings,”36 such a requirement would “minimize
repeated guardianship or conservatorship contests.”37
The changed circumstances requirement is not grounded in the language
of the statute for removal of guardians for minors, AS 13.26.186. It also does not appear
in the statutory language governing removal of guardians of incapacitated persons.38
Instead, we adopted the requirement based on policy considerations, including the
32
42 P.3d at 1099.
33
Id.
34
Id.
35
Id.
36
Id. (quoting Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990)).
37
Id.
38See AS 13.26.286.
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emotional and financial cost of “[e]xtended or repeated litigation over removal,” the
strain on family relationships caused by litigation, and the resulting need to “minimize
repeated guardianship or conservatorship contests.”39 These policy considerations are
no less important in litigation over minors’ guardians. Families are just as likely to
pursue extended and repeated litigation over removing a minor’s guardian as they are the
guardian of an incapacitated relative (or to try to modify child custody), and such
litigation is just as likely to exact a high emotional and financial toll. We now adopt the
same two-part standard used for the removal of guardians of incapacitated persons for
the removal of guardians of minors. To remove the guardian of a minor, a petitioner
must first show that the circumstances of the ward or guardian have changed materially
since the guardian was appointed, and the court must then determine that the existing
appointment is in the ward’s best interests.40
2. The superior court did not abuse its discretion by determining
that Cecilia’s continued guardianship was not in Baron’s best
interests.
Cecilia argues that the court abused its discretion not only by “fail[ing] to
recognize OCS’s passivity toward Cecilia,”41 but also by “overly crediting [the
psychologist]’s report,” failing to credit Cecilia’s sobriety, relying “on a supposed
correlation not supported by expert testimony to find that there was sufficient evidence
to terminate the guardianship,” finding that Cecilia ignored her mental illness, and
39
H.C.S., 42 P.3d at 1099.
40
Id. Because the finding of changed circumstances was not challenged, we
need not review it.
41
Cecilia’s assertions that the court failed to recognize OCS’s passivity
toward her and found evidence sufficient to terminate the guardianship without expert
testimony are based on the procedures required for foster placement or termination of
parental rights in ICWA cases. Those requirements do not apply as we have discussed.
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assuming without evidence that the foster placement is better for Baron than remaining
in Cecilia’s care.
Cecilia claims that the court gave too much credit to the psychologist’s
report, despite the psychologist’s “own testimony which limited the impact of the
report’s negative conclusions,” including that he had not observed Cecilia with Baron
and that Cecilia had made positive efforts. But the court acknowledged limitations in the
report, nonetheless finding that it was credible. That the psychologist acknowledged the
report’s limitations does not mean the court abused its discretion by crediting the
report.42 And as the psychologist testified, he conducted the evaluation in November
2019, several months after Cecilia stopped using methamphetamine, so Cecilia’s
continued abstinence would not necessarily have changed the conditions the psychologist
observed. Cecilia argues that the report is contradicted by the fact that no harm came to
Baron while she cared for him, but the court heard evidence that he was exposed to
methamphetamine, missed school, struggled with toilet training, and used foul language,
which the court found corresponded with Cecilia’s escalating drug use. The superior
court did not abuse its discretion by crediting the psychologist’s report.
Cecilia also argues that the superior court failed to credit her sobriety. But
the court did acknowledge Cecilia’s sobriety and other positive traits. The court also
acknowledged that Cecilia’s UAs were mostly negative, with some no-show results that
it treated as positive. However, the court found that although Cecilia had been sober “for
some period,” she had not sought treatment for her substance abuse issues. That finding
is correct; Cecilia has not been treated for substance abuse. Contrary to Cecelia’s
argument, the court carefully considered the evidence of her sobriety. But it also took
42
See Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co., 299 P.3d 148,
166 (Alaska 2012) (“Particular deference is due to the superior court’s credibility
determinations.”).
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into account the assessment’s conclusion that Cecilia had a “high level of treatment need
for substance abuse.”
Next Cecilia contends that the court incorrectly found that she had ignored
her mental illness. But Cecilia misinterprets the court’s findings. She cites the court’s
statement that “there is a substance abuse issue that requires a high level of care. She has
remained it appears for some period of time at this point sober; however, she is untreated
and she has serious substance abuse issues.” The court was referring to her untreated
substance abuse; Cecilia herself admitted she has not received treatment for substance
abuse. And the court had previously recognized that Cecilia saw a therapist. Cecilia’s
contention that the court found that she had ignored her mental illness is mistaken.
Finally Cecilia argues that there was insufficient evidence that Baron’s
foster home better serves his best interests. The statute governing removal of minors’
guardians states that the “petition for removal . . . may, but need not, include a request
for appointment of a successor guardian.”43 OCS did not argue that the foster family
better cared for Baron, although a caseworker mentioned his “growing attachment” to
them and noted that his sensory issues seemed to have abated. The court was not
required to determine whether Baron’s foster home, or any alternative to Cecilia’s
guardianship, was superior. The court’s task was to evaluate whether removing Cecilia
as Baron’s guardian was in his best interests; it concluded that removal was.
The court extensively discussed the evidence, including evidence in
Cecilia’s favor, before concluding that removing her as guardian was in Baron’s best
interests. Cecilia has failed to establish that the superior court abused its discretion when
it determined that removing Cecilia as guardian was in Baron’s best interests.
Accordingly we affirm the superior court’s decision.
43
AS 13.26.186(a).
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V. CONCLUSION
The superior court’s order terminating guardianship is AFFIRMED.
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