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Supreme Court of Alaska.


NELSON M.,

v.

STATE of Alaska, Division OF FAMILY AND YOUTH SERVICES, Appellee.

Dora B., Appellant,

v.

State of Alaska, Division of Family and Youth Services, Appellee.


Nos. S-11208, S-11236.


Nov. 24, 2004.

Appeals from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Dale O. Curda, Judge.


Sharon Barr, Assistant Public Defender, and Barbara A. Brink, Public Defender, Anchorage, for Appellant Nelson M.


J. Randall Luffberry, Assistant Public Advocate, Palmer, and Joshua Fink, Public Advocate, Anchorage, for Appellant Dora B.


Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.


 Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and  CARPENETI, Justices.


MEMORANDUM OPINION AND JUDGMENT  [FN*]

FN* Entered pursuant to Appellate Rule 214.


  I. INTRODUCTION


*1 This Indian Child Welfare Act parental termination case requires us to decide whether, as appellants contend, the superior court erred in finding that the state made active efforts to prevent the breakup of the Indian family and that termination was in the child's best interests. Because we conclude that the superior court did not clearly err, we affirm.


II. FACTS AND PROCEEDINGS


Jason M. was born to Dora B. and Nelson M. in December 1994. [FN1] Dora is Athabaskan and Jason is a member of the Native Village of McGrath. Jason is an Indian child within the meaning of the Indian Child Welfare Act (ICWA).  [FN2]


FN1. This opinion uses pseudonyms for all family members.


FN2. 25 U.S.C. §§ 1901-23, 1951 (2000).


 In March 1995 Alaska Division of Family and Youth Services (DFYS) began receiving reports of harm towards Jason involving neglect by his parents and domestic violence within the home. DFYS started working with the family to correct these issues but the neglect reports continued. Jason was first removed from Dora and Nelson's custody in November 2000 and was placed with Nelson's mother in an effort to avoid DFYS assuming custody. In January 2002 DFYS learned that Nelson's mother began leaving Jason with his parents. It began receiving reports from the community that Nelson and Dora would leave Jason at home alone while they both went to the bar and that they would both be intoxicated while they were watching Jason.


On March 9, 2002 DFYS received a report that Jason was home with Dora and Nelson who were both intoxicated. Brennda Cash, a DFYS social worker, removed Jason from the home; the state was granted temporary custody and Jason was placed with foster parents. Shortly after this removal, Cash met with Nelson and Dora to develop a case plan that provided for alcohol treatment and monitoring, parenting training, and anger management and mental health counseling. Both parents participated in the plan's development but refused to sign it and did not attempt to implement any of the provisions. While DFYS had custody of Jason, two additional case plans were formulated with similar results. [FN3]


FN3. Nelson signed the third case plan. For a more detailed review of the services DFYS provided to Nelson and Dora, see Part IV.A below.


 The parties agreed to a Child in Need of Aid (CINA) stipulation and adjudication. Their June 4, 2002 stipulation stated that "[a]ctive efforts have been and are being made, active remedial services and rehabilitative programs were offered to avoid removal and to make it possible for the child to return home, without success to date." Both parents agreed in the stipulation that they would work with DFYS to accomplish the following:

a. The parents agree to obtain substance abuse evaluations and to follow all recommendations, including aftercare and AA meetings as appropriate and available.

b. The parents agree to attend and successfully complete parent education classes.

c. The parents agree to participate in and successfully complete anger management classes and domestic violence counseling.

d. The parents agree to remain sober at all times when the child are [sic] in their care and custody and maintain a safe household for the child.

*2 e. The parents agree to maintain regular contact with the assigned social worker.

 The superior court entered an order finding Jason to be a child in need of aid on June 26, 2002.


In January 2003 the state petitioned for termination of Dora and Nelson's parental rights. A termination trial was held in May, June, and July 2003. Both parents testified. So did DFYS social worker Brennda Cash, psychologist Paula MacIan, substance abuse counselor Richard Breckheimer, and guardian ad litem Thor Williams. Because Jason is a member of the McGrath Tribe, the Tanana Chiefs Conference participated in the trial and ICWA standards were applied.


The superior court entered the termination order on August 12, 2003. Dora challenges only two of the superior court's findings on appeal: (1) that DFYS made "active efforts" to prevent the breakup of the family, and (2) that it was in Jason's best interest to have Dora's rights terminated. Nelson appeals only the first issue.


III. STANDARD OF REVIEW


It is a mixed question of fact and law whether DFYS complied with the "active efforts" requirement of the Indian Child Welfare Act (ICWA). [FN4] We review the superior court's factual findings under the clearly erroneous standard and its legal conclusions de novo. [FN5] A finding is clearly erroneous if "after reviewing the entire record, we are left with a definite and firm conviction that a mistake has been made."  [FN6]


FN4. E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 989 (Alaska 2002); 25 U.S.C. §§ 1901-23 (2000).


FN5. E.A., 46 P.3d at 989.


FN6. J.W. v. State, 921 P.2d 604, 606 (Alaska 1996).


  IV. DISCUSSION


Nelson and Dora have filed separate appeals. They both argue that the superior court erred in finding that DFYS had made active efforts to provide programs and services to reunify them with Jason. Dora also argues that the superior court erred in finding that it was in Jason's best interests for her parental rights to be terminated.


A. The Superior Court Did Not Clearly Err in Finding that DFYS Made Active Efforts Under ICWA.


ICWA requires a state to prove by a preponderance of the evidence that it made "active, but unsuccessful, efforts to provide remedial services and rehabilitative programs" designed to prevent an Indian family's breakup.  [FN7] Because the record contains evidence that supports the trial court's determination that active efforts were made by DFYS, this finding was not clearly erroneous.


FN7. N.A. v. State, Div. of Family & Youth Servs., 19 P.3d 597, 602 (Alaska 2001); 25 U.S.C. § 1912(d) ("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.").


 We have previously said that there have been active efforts if the caseworker  "takes the client through the steps of the plan rather than requiring that the plan be performed on its own."  [FN8] The court may consider whether the parents cooperated with treatment plans in making its active efforts determination. [FN9] Because we have held that "no pat formula" exists for distinguishing between passive and active efforts, we review the superior court's active-efforts determination on a case-by-case basis. [FN10]


FN8. A.A. v. State, Div. of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 1999).


FN9. N.A., 19 P.3d at 603.


FN10. A.M. v. State, 945 P.2d 296, 306 (Alaska 1997).


  1. The superior court permissibly found that DFYS made active efforts to reunify Dora and Jason.


Following a full trial, the superior court found that the preponderance of the evidence showed that DFYS had made active efforts to prevent the family's breakup. Dora argues that with respect to her alcohol problem, DFYS acted passively by only providing applications and not assisting her with completing an application or attempting to advance her priority for entry into a program. The superior court found that DFYS had provided Dora with many applications for inpatient substance abuse treatment programs but that Dora "chose to seek out treatment on her own, entering a program that does not fully meet her needs." The court also found that DFYS "did what it could to help [Dora] including paying for her transportation" to treatment. There is support in the record for these findings. They are therefore not clearly erroneous.


*3 In the first case plan, developed within a month after DFYS took custody of Jason, DFYS laid out a plan to assist Dora with her alcohol problem. The case plan instructed Dora to complete an alcohol assessment, follow the assessment's recommendations, and complete an alcohol treatment program at Old Minto, an inpatient care facility. Dora's social worker, Brennda Cash, testified that she sat down with Dora and went over the plan, a timeline for implementing the plan, and explained to Dora what she needed to do to ensure reunification with Jason. Cash testified that she made a formal referral to Four Rivers, a counseling center located in McGrath, for a mental health and alcohol assessment and that she encouraged Dora to call and schedule the assessment.


Dora's first case plan required her to complete alcohol treatment at the Old Minto Recovery Program. Cash testified that Dora was within "a few forms" of being admitted to Old Minto when Dora came to the office and requested a different program without explanation. Cash testified that she then gave Dora an application for the Alaska North Addictions Recovery Center (ANARC) but Dora did not complete that application either. Instead, Dora had an independent assessment done a few months later in Anchorage.


After getting the results of this assessment, Cash testified that she and another DFYS social worker met with Dora and "gave her all of the treatment programs that were available in the state." DFYS's Report for the Permanency Hearing stated that Cash told Dora that "she need[ed] to follow through and complete an application for a treatment center of her choice and immediately get into treatment." Cash testified that Dora refused this assistance and that Dora told Cash that she would not work with her or with DFYS.


Dora testified that she chose to apply to the Ernie Turner Center on her own and was placed on a lengthy waiting list. She was instructed by her assessment counselor in Anchorage to call once a week to check her status. Cash testified that Dora would come to the DFYS office and, with Cash or another DFYS social worker, they would call the Anchorage counselor and they "worked together to get her [into the Ernie Turner Center]." Cash testified that while Dora was on the waiting list, another social worker encouraged Dora to apply to other programs where Dora could get treatment more quickly. In the permanency report, Cash also suggested that Dora work as an outpatient with Four Rivers for both mental health and substance abuse counseling until she could enter her inpatient treatment program. Dora was finally admitted into treatment fifteen months after losing custody of her son; Cash testified that DFYS paid Dora's transportation costs to Anchorage. [FN11]


FN11. Cash testified that it is DFYS policy to pay for one-way transportation to the treatment facility. If the treatment program is successfully completed, DFYS will pay the return fare as well.


 The superior court found that DFYS engaged in active efforts even though Dora   "hamper[ed] the process." The court found that Dora was "uncooperative with DFYS in formulating a case plan and following it." The court also found that Dora did not want to go to treatment, that she refused to acknowledge that she had a problem or needed treatment, and that this attitude impaired the reunification process.


*4 Cash testified that it was "virtually impossible to get ... [Dora] engaged" in the reunification process. Cash testified that she

would go to the door, knock on the door. Even though I would hear the TV going, no one would answer the door, and then I would try again, I'd call on the phone, they would guarantee me they would come into the office at such-and-such date at such-and-such time, and that didn't happen time and time again.

 The permanency report shows that although Dora received referrals for  "alcohol assessments, substance abuse treatment, mental health counseling, weekly [urinalyses], parenting training and being a victim of [domestic violence] counseling," she "has made minimal effort to follow through with any recommendations."


Dora testified that DFYS has "been helpful all along, it's just that I haven't been cooperative up until the last two months." She acknowledged that she did not take advantage of counseling services offered to her in McGrath, that she was unwilling to meet with her social worker or to sign case plans, and that she resisted DFYS's efforts to help her. Dora admitted that she "could've and should've [done] more applications, but I didn't, and it was just out of anger ... at DFYS." Cash testified that Dora was not interested in even applying to many of the programs DFYS offered her, including one she and Jason possibly could have attended together, because the programs were too long-term.


The superior court also found that DFYS had encouraged continued contact with Jason by arranging liberal visitation and providing phone cards when Dora was not in McGrath. Cash testified that initially visits were scheduled at the DFYS office, but when this did not work, DFYS arranged visits at Jason's foster home "pretty much ... whenever [Nelson and Dora] wanted them." Dora acknowledged that she "didn't visit him as much as I should" because she "always wanted to visit with him, but his dad wouldn't want to come with me, so I--I just didn't go."


Dora also argues that DFYS's actions were insufficient because although DFYS identified substance abuse, domestic violence, and anger management issues when Jason was taken into custody, the case plans did not fully assist her with all of these issues. She alleges that anger management treatment was not addressed until the third case plan in March 2003 and her treatment for domestic violence was limited to victim treatment.


Dora's original case plan directed her to complete a mental health assessment at Four Rivers, use Four River's counseling services, and complete counseling for domestic violence victimization. Cash testified that DFYS referred Dora to Four Rivers for a mental health and alcohol assessment. Completion of this assessment was the first task listed in Dora's case plan. The counselor from Four Rivers testified that after an assessment is completed, he develops a treatment plan specific to each client's needs.


*5 In October 2002 Dora finally had an assessment by a counselor in Anchorage. Cash testified that Dora's assessment recommended that Dora get started with counseling right away because "she had a lot of mental health issues to work through." Cash testified that after receiving this assessment, she sat down with Dora to discuss her treatment options and offered to assist her with applying to any program that she wanted. The next case plan that DFYS developed was the March 2003 plan which included anger management treatment and "treatment to address being a victim of [domestic violence] and other mental health issues." We can reasonably infer that as soon as DFYS had a professional assessment, Dora's case plan was tailored to her specific needs.


Dora's case plan arguably should have included a recommendation that she receive domestic abuse counseling as a perpetrator as well as a victim. But this possible oversight does not mean that DFYS did not make active efforts to reunify Dora and Jason. The superior court found that Dora chose to complete an assessment outside the DFYS case plan and entered a program "that [did] not fully meet her needs" at "the [eleventh] hour." The superior court found that, given Dora's reluctance to cooperate with DFYS, DFYS "did what it could to help" her. That finding is supported by the record and thus was not clearly erroneous.


2. The superior court permissibly found that DFYS made active efforts to reunite Nelson with Jason.


Nelson asserts that DFYS did not actively assist him because it did not set up appointments for him or walk him through the application process. [FN12] Instead, Nelson argues that DFYS only provided applications for alcohol treatment programs that he could not figure out how to complete. The superior court found that Nelson "never returned any applications or requested help in filling them out." The court found it "hard to believe" that Nelson did not understand how to fill out the applications because he had some college education and had been described as highly motivated.


FN12. ICWA standards apply even when, as they are here, DFYS is seeking to terminate the parental rights of a non-Indian parent to an Indian child. K.N. v. State, 856 P.2d 468, 474 n. 8 (Alaska 1993).


 Within a month of taking custody of Jason, DFYS met with Nelson and drafted a case plan addressing his problem with alcohol, parenting, and domestic violence. It required him to get an alcohol and mental health assessment at Four Rivers within twenty-five days. Cash testified that DFYS sent a referral to Four Rivers and encouraged Nelson to contact them to schedule his assessment. He refused to sign the case plan and did not complete his assessment until nearly nine months later. DFYS arranged an appointment time for Nelson to have a urinalysis each week. Nelson testified that he knew about the appointments but because they conflicted with his work schedule he could never attend. He also testified that he never told anyone at DFYS about his conflict.


Nelson also argues that there was a lack of communication between DFYS and himself that led to "an inability to provide the support that was required and that [Nelson] needed." The superior court found that Cash had met in person with Nelson numerous times as well as communicating with him through letters and telephone calls.


*6 Cash testified that she had at least eight to ten face-to-face meetings with Nelson. Nelson testified that Cash sent letters to him about treatment options and upcoming meetings in which she wanted him to participate. Nelson acknowledged receiving letters from Cash. Nelson also testified that Cash came by his house to remind him of a hearing taking place that afternoon in which he was to participate. At trial, the superior court took judicial notice that Nelson did not participate in that hearing.


The superior court also found that DFYS encouraged visitation between Nelson and Jason. Cash testified that she attempted to work with Nelson to arrange visitation with Jason that would be comfortable and convenient for both father and son. Cash testified that when Nelson complained about the lack of privacy at the DFYS office, she arranged for visitation at the foster home. Although the foster home was less than a half mile from his house, Nelson testified that he "seldom" visited Jason.


The superior court found that Nelson was uncooperative in the reunification process and that he blamed DFYS for taking Jason away from him. Cash testified that when she would attempt to engage him in the case plan, he would "do anything he could to get off of the subject." The termination plan noted that Nelson would not maintain contact with DFYS. Nelson refused to sign or act on the first two case plans before eventually signing the March 2003 plan. Cash testified that she was told that Nelson was entering a residential alcohol treatment program at New Hope. When she called New Hope to check on his status, she was informed that Nelson had never even applied to the program. Cash testified that Nelson blamed DFYS for his problems and told her that if she had not taken his son, he wouldn't be so "messed up."


Nelson was incarcerated at the Tundra Center in Bethel for his fourth DWI in February 2003. His incarceration is relevant to the active-efforts requirement of ICWA. Incarceration does not relieve the state of its burden, but the practicalities of incarceration such as "the difficulty of providing resources to inmates generally, the unavailability of specific resources, and the length of incarceration" can have a bearing on what services are realistic . [FN13]


FN13. A.A., 982 P.2d at 261.


 Cash testified that she mailed applications for three different alcohol treatment programs to Nelson at the Tundra Center. Nelson testified that he did not understand how to complete the applications, but he did not ask for assistance or notify DFYS that he was having trouble.


Prior to incarceration, Nelson completed his assessment at Four Rivers. His assessment counselor testified that he developed a plan that included individual and recreation therapy as an outpatient and recommended an intensive inpatient alcohol treatment program. However, he had to close Nelson's file when Nelson was incarcerated because Four Rivers was not capable of working with Nelson while he was outside McGrath.


*7 The Department of Corrections's efforts are combined with DFYS's actions in determining whether the state met the active efforts requirement of ICWA.  [FN14] Nelson testified that since he has been in custody at the Tundra Center, he has been offered many short-term treatment programs. The Tundra Center certified that he completed a twenty-hour drug education program, a ten-hour stress and anger management program, and an eight-hour family dynamics program. Nelson testified that he attended both Narcotics Anonymous and Alcoholics Anonymous meetings while incarcerated.


FN14. A.M. v. State, 945 P.2d 296, 305 (Alaska 1997) ("It is of no particular consequence that the Department of Corrections (DOC), rather than DFYS, made these active remedial efforts.").


 Much of Nelson's testimony was directly disputed by testimony from Brennda Cash. Nelson testified that he was always willing to go to treatment and do whatever was necessary to regain custody of Jason. But Cash testified that Nelson was not willing to enter treatment, refused to sign case plans, did not visit Jason often, and generally resisted her assistance. Nelson testified that he was unsure who his social worker was and that he rarely had contact with DFYS. Cash testified that she met in person with Nelson eight to ten times and that the three social workers assigned to his case worked as a team. Nelson argues that one reason he did not enter treatment for his alcohol problem was that he did not know how much treatment was going to cost or who was going to pay for it. Cash testified that a social worker at DFYS had answered Nelson's questions about treatment costs and had told him that the division's policy was to pay for one-way travel to the treatment location.


The superior court found it "hard to believe" that Nelson did not understand how to fill out treatment applications and generally discredited most of his testimony. Factual findings are always reviewed for clear error and we give particular deference to factual findings based mostly on oral evidence because "[i]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence."  [FN15] The superior court's finding that DFYS provided active efforts to reunify Jason and Nelson was not clearly erroneous.


FN15. Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999).


  B. The Superior Court Did Not Clearly Err in Finding that It Was in the Child's Best Interests To Terminate Dora's Parental Rights.


Dora argues that the superior court clearly erred in finding that termination of Dora's parental rights would serve Jason's best interests. She maintains that the court should allow her a period of time to "demonstrate a continuation of her sobriety." Alternatively, she argues that a guardianship would serve Jason's interests better than adoption.


The superior court must consider whether a preponderance of the evidence shows that it is in the "best interests of the child" to terminate parental rights.  [FN16] Alaska Statute 47.10.088(b) lists the factors that may be considered in the best interests analysis as:


FN16. AS 47.10.088(c); Alaska Child in Need of Aid Rule 18(c)(2)(C).


(1) The likelihood of returning the child to the parent within a reasonable time based on the child's age or needs;

*8 (2) the amount of effort made by the parent to remedy the conduct or 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.

 The superior court made findings related to each of the five factors and the record supports these factual findings. [FN17]


FN17. Dora does not make a legal argument that the superior court misapplied the statute or misinterpreted its meaning. Instead, Dora argues that the superior court erred in making some factual findings under the enumerated factors in AS 47.10.088(b).


 The superior court found that Jason would have to wait at least six months before the state could consider returning him to his parents and that, given his young age, this delay was against his best interests. Dr. MacIan, a clinical psychologist for DFYS, testified that Dora would have to be sober for at least six months before the division would consider placing Jason back in her custody. She testified that Dora was not prepared to get into treatment and had not demonstrated a desire to give up drinking. Dr. MacIan testified that, based on Dora's history with alcohol, her drinking "could go on for an indefinite period of time." Cash testified that even if Dora remained sober for six months, she still might not recommend reunification because Dora's alcohol program did not treat her anger, domestic violence, or parenting issues. Jason's guardian ad litem testified that Jason was excited about going to stay with his aunt and that it was better for Jason to be in a secure, permanent setting. [FN18] Dr. MacIan testified that Jason wanted to live with his aunt and that it was important for Jason to be in a permanent home.


FN18. Jason's permanency plan calls for his adoption by his aunt.


 The superior court found that Dora had made no effort to correct her problem with alcohol, except for her "[eleventh] hour entry into treatment." The court relied on her unwillingness to cooperate with DFYS in implementing her case plan and her refusal to acknowledge that she has a drinking problem. Cash testified that Dora was drinking up to the day that she left for treatment, to the extent that she was almost turned away by the airline flying her to Anchorage for her treatment program. Even after nearly completing treatment, Dora wouldn't admit at trial to being an alcoholic. The permanency report stated that Dora was not actively working her case plan and would not maintain contact with DFYS. Dora testified that she was unwilling to sign any of the three case plans developed by DFYS and that she was uncooperative because she was angry with the division.


The superior court found that Jason suffered physical harm from his parents' neglect and that he was at risk of suffering "serious" physical harm. The court noted that Jason wanted to sleep in the same bed as his foster parents when he was first removed from his parents' custody but that he has now "flourished" and become "self-assured." Dr. MacIan testified that Jason experienced nightmares from "the neglect that [he] experienced, which included being exposed to domestic violence, seeing his parents inebriated, having his parents injured [in] snowmachine accidents, not knowing where they are, not knowing about their well-being, and the concern that that caused him." She also testified about a report that Jason had fallen off a snowmachine that Nelson was driving after drinking. Dora admitted to drinking in front of Jason, exposing him to domestic violence, and not visiting him very often while he was in foster care. Nelson testified that he and Dora have gone off to drink and left Jason at home alone. Dora testified about an incident in which she and four or five other adults, including her brother, were drinking on the lower level of her home. Jason was downstairs with Dora and her friends while they were drinking. Nelson was upstairs. Her brother picked up a loaded gun and it went off with Jason standing nearby. The bullet went through the ceiling and hit Nelson in the leg.


*9 Dr. MacIan testified that Jason's overall wellness had improved since moving in with his foster parents. She informed the court that Jason's teacher reported improvement in his work, attitude, and relationship with other students a month after he was taken into DFYS custody.


The superior court found that Dora's "attitude about not wanting to go to a long-term residential treatment facility and inability to realize she needs treatment are setting her up to fail again." (Emphasis in original.) The court said that Dora's desire to continue her relationship with Nelson was setting up her failure because neither of them has had any treatment for anger management, parenting, or domestic violence. During her testimony, Dora repeatedly refused to acknowledge that she had a drinking problem. She testified that she had previously tried to quit drinking at least ten times and has been in residential treatment programs three times. Dora admitted that her longest period of sobriety since Jason's birth was three to four months. Dora testified that her alcohol treatment program did not offer parenting, domestic violence, or anger management classes. Dora testified that she would like to continue her relationship with Nelson once she completes alcohol treatment and Nelson finishes serving his jail time.


The superior court found a history of domestic violence, neglect of Jason, and alcohol abuse by Dora. The court noted that Dora and Nelson physically and verbally abused each other while Jason was present. The court also found that Dora chose to spend money on alcohol instead of paying bills, left Jason at home alone while she went out drinking, and skipped visitation with Jason. Dora testified that when both she and Nelson were drinking, they would argue and generally acted aggressively. Dora admitted to hitting Nelson and to being hit by him. Dora testified that she sometimes could not afford to pay bills, even though she was spending about $100 a month on alcohol. Dora admitted drinking in front of Jason and Nelson testified that he and Dora had left Jason home alone so that she could go the bar and drink. Dora testified that she would sometimes call Jason at his foster home and schedule a time to visit but would not always show up or even call to tell Jason that she wasn't going to make it.


Dora also argues that Jason's guardian ad litem failed to protect Jason's best interests. It is true that Jason's guardian did not fully investigate his case. In fact, the guardian spoke to Jason only once and did not address the issue of how Jason felt about his parents' rights being terminated. Perhaps the guardian ad litem should have more thoroughly investigated Jason's case. However, it is the role of the superior court, not the guardian ad litem, to determine whether or not it is in the best interests of the child to terminate the parent's rights. [FN19]


FN19. AS 47.10.088(c); CINA Rule 18(c)(2)(C).


 Dora further argues that guardianship would have better served Jason's interests than adoption. Because Dora did not raise the guardianship issue in the superior court, this issue is not properly before us. [FN20]


FN20. See G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 655 n. 25 (Alaska 2003) (holding that father could not argue that state was required to place his child with relative under AS 47.14.100(e) because it was not raised in superior court); Erica A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 66 P.3d 1, 11 (Alaska 2003) (refusing to review issues argued in brief that were not presented to lower court); D. E.D. v. State, 704 P.2d 774, 780 (Alaska 1985) (stating in ICWA parental rights termination case that "[s]ince the issue was never properly raised below, we do not consider it here.").


  *10 The superior court found that it was in Jason's best interests to terminate Dora's parental rights under AS 47.10.088(b). This finding is supported by the record and was not clearly erroneous.


V. CONCLUSION


Because we find support in the record for the superior court's determination that (1) the state made active efforts to prevent the breakup of an Indian family and (2) termination of parental rights was in the best interests of the child, there was no clear error. We AFFIRM the superior court's decision to terminate Nelson and Dora's parental rights.

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