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(Cite
as: 61 P.3d 438)
Supreme
Court of Alaska.
STATE
of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF
FAMILY &
YOUTH
SERVICES, Appellant,
v.
M.L.L.,
Appellee.
No.
S-10450.
Dec.
31, 2002.
In
a termination of parental rights case, the Supreme Court upholds
the superior court's factual findings unless they are clearly erroneous;
factual findings are held to be "clearly erroneous" if a
review of the entire record leaves the court with the
definite and firm conviction that a mistake has been made.
Whether
the superior court's findings in a termination of parental rights
case comport with the requirements of Indian Child Welfare Act
(ICWA) involves a question of law and will be reviewed
de novo.
The
trial court adequately considered the likelihood that granting custody of
the children to mother would cause severe harm to the
children by breaking their bond with their foster mother, in
termination of parental rights case; the court made an oral
finding that "even ignoring the bonding issue the court would
find by a preponderance of the evidence that the return
of the children to [mother] would be more likely than
not to result in serious emotional harm to them," and
the court relied on the testimony of child psychologist who
testified extensively on the bonding issue.
Evidence
was insufficient to prove beyond a reasonable doubt, on second
petition for termination of parental rights after children had been
in foster care for more than four years, that return
of the children to mother's custody would likely result in
serious physical or emotional harm to the children; mother had
been sober for three years, she ended her abusive relationship
with the
children's father and married a stable man who supported her,
she had remedied many of the unhealthy conditions which led
to the removal of the children, and testimony regarding mother's
mental illness and mild mental retardation raised questions regarding mother's
ability to parent the children but did not establish her
inability to do so. 25 U.S.C.A. § 1912(f).
*439
Jan A. Rutherdale, Assistant Attorney General, and Bruce M. Botelho,
Attorney General, Juneau, for Appellant.
Robert F. Meachum, Assistant Public Defender, Juneau, and Barbara K.
Brink, Public Defender, Anchorage, for Appellee.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
CARPENETI, Justice.
I.
INTRODUCTION
The superior court denied a petition to terminate the parental
rights of Melanie Lewis [FN1]
(M.L.L.) to her two children, Teresa Hanson and Kelly Hanson.
The State of Alaska, Department of Health and Social Services,
Division of Family and Youth Services appeals, claiming that the
superior court erred
by (1) not considering the emotional harm that would be
caused by breaking the bonds between the children and their
foster mother and (2) not finding beyond a reasonable doubt
that returning the children to their mother would likely result
in serious emotional or physical damage. Because the superior court
properly found that there was insufficient evidence to prove beyond
a reasonable doubt that the children would be harmed by
being returned to Lewis, we affirm that court's decision not
to terminate her parental rights.
FN1.
Pseudonyms are used for all family members in this opinion.
II.
FACTS AND PROCEEDINGS
A.
Facts and Proceedings in the 1999 Termination Trial
This case involves the termination of Lewis's parental rights to
her two daughters: Teresa and Kelly.
[FN2] Lewis and her ex-husband, Arnold Hanson,
[FN3] met in Juneau in 1991, where they were both
undergoing treatment with the Juneau Alliance for the Mentally Ill
(JAMI). They had their first daughter, Teresa, in Anchorage in
1995.
[FN4] Their second daughter, Kelly, was born in October 1996
in Juneau.
[FN5]
FN2.
Melanie Lewis married Ron Lewis between the 1999 child custody
determination and this case. She is referred to as Melanie
Hanson (M.H.) in
earlier court documents and M.L.L. in current court documents.
FN3.
Arnold Hanson's parental rights were terminated in an earlier case,
which we affirmed. A.H.
v. State, Dep't of Health & Soc. Servs.,
10 P.3d 1156 (Alaska 2000).
FN4.
Id.
at 1158.
FN5.
Id.
at 1159.
In July 1997 the state petitioned for and received temporary
custody under the statutes governing children in need of aid
(CINA) and the Indian Child Welfare Act (ICWA).
[FN6] After several unsuccessful attempts to place the children with
relatives or native families, Teresa and Kelly were finally placed
with a non-native, licensed foster parent.
[FN7] The foster parent is a special education *440
teacher, and has indicated that she wants to adopt the
children.
[FN8]
FN6.
Id.
FN7.
Id.
FN8.
Id.
The state then petitioned to terminate the parental rights of
both Arnold Hanson and Lewis in 1999. They were adjudicated
Children in Need of Aid in both the July 1997
temporary custody determination and the 1999 termination of parental rights
decision for a number of reasons.
Teresa and Kelly were found to be children in need
of aid under AS 47.10.011(11).
[FN9] Specifically, the superior court found that Lewis was diagnosed
with schizo-affective disorder, post-traumatic stress disorder, and mild mental retardation.
Lewis's emotional disorders ranged from suicide attempts and ideation to
irritable moods and poor tolerance for frustration. These disturbances appeared
to be partially caused or exacerbated by Lewis being "overwhelmed
by the constant daily pressures of homelessness, her husband's illness,
and the routine care of her children."
FN9.
AS 47.10.011(11) provides:
Subject
to AS 47.10.019, the court may find a child to
be a child in need of aid if it finds
by a preponderance of the evidence that ... the parent,
guardian, or custodian has a mental illness, serious emotional disturbance,
or mental deficiency of a nature and duration that places
the child
at substantial risk of physical harm or mental injury[.]
The children were also found to be children in need
of aid under AS 47.10.011(10) because Lewis's habitual use of
intoxicants impaired her ability to parent.
[FN10] Between 1997 and 1998, after the children were removed
to foster care, Lewis resumed drinking after a period of
apparent sobriety. During this period police witnessed her in a
state of intoxication, sometimes severe, on at least three occasions.
In one incident, a police officer, while responding to a
report of a fight at the couple's residence, found beer
cans everywhere and Lewis extremely intoxicated.
FN10.
AS 47.10.011(10) provides in relevant part:
Subject
to AS 47.10.019, the court may find a child to
be a child in need of aid if it finds
by a preponderance of the evidence that the child has
been subjected to [conditions under which] the parent, guardian, or
custodian's ability to parent has been substantially impaired by the
addictive or habitual use of an intoxicant, and the addictive
or habitual use of the intoxicant has resulted in a
substantial risk of harm to the child[.]
The children were also found to be CINA under AS
47.10.011(8)(B)(iii) because
their repeated exposure to domestic violence placed them at substantial
risk of mental injury.
[FN11] On one occasion Hanson almost hit Lewis and Teresa
with a backpack while Lewis was holding Teresa. On another
occasion a physical altercation between Hanson and Lewis in front
of the children left them in a state of extreme
distress.
FN11.
AS 47.10.011(8)(B)(iii) provides:
Subject
to AS 47.10.019, the court may find a child to
be a child in need of aid if it finds
by a preponderance of the evidence that the child has
been subjected to ... conduct by or conditions created by
the parent, guardian, or custodian [which] have ... placed the
child at substantial risk of mental injury as a result
of ... repeated exposure to conduct by a household member,
as defined in AS 18.66.990, against another household member that
is a crime under AS 11.41.230(a)(3) or 11.41.250-11.41.270 or an
offense under a law or ordinance of another jurisdiction having
elements similar to a crime under AS 11.41.230(a)(3) or 11.41.250-11.41.270[.]
The children were also found to be CINA under AS
47.10.011(9) because of neglect by Hanson and Lewis.
[FN12] The parents failed to feed and clothe their children
adequately on several occasions. Additionally, Hanson and Lewis
irrationally removed their children from the security of Juneau's Glory
Hole shelter and their trailer on separate occasions to spend
the night outside because they did not feel safe in
those secure places. The couple also failed to provide adequately
for their children's health, as both children were constantly sick
and Kelly's serious health problems (pneumonia and seizures) were only
treated due to the intervention of third parties. Additionally, the
children were not *441
bathed regularly and the house lacked toothbrushes, towels, soap, shampoo,
and toilet paper for them. The children were assessed as
having significant developmental delays in 1997, and one expert said
that the neglectful environment put them at high risk of
developmental delay.
FN12.
AS 47.10.011(9) provides:
Subject
to AS 47.10.019, the court may find a child to
be a child in need of aid if it finds
by a preponderance of the evidence that ... conduct by
or conditions created by the parent, guardian, or custodian have
subjected the child or another child in the same household
to neglect[.]
After Teresa and Kelly were placed with their foster parent,
Lewis continued to exhibit problematic behavior for a relatively short
period of time. At one point Lewis and Hanson cashed
an agency check, meant to provide for the cost of
a trip to visit their children, in order to buy
alcohol. Additionally, the children
suffered from serious regression after visits by Lewis and Hanson
in December 1997 and April 1998. By mid-1998 Lewis made
some improvements in her ability to care for Teresa and
Kelly by ending her relationship with Hanson, stopping her use
of alcohol, and beginning a relationship with Ron Lewis, a
stable man who does not drink.
In 1999, based on the above facts, the superior court
terminated the parental rights of Hanson, a decision that this
court affirmed in A.H.
v. State.
[FN13]
In that decision the superior court also found that
FN13.
A.H.
v. State,
10 P.3d 1156 (Alaska 2000).
there
is clear and convincing evidence that [Melanie Lewis] failed, within
a reasonable time, to remedy the conduct and conditions that
place the children at substantial risk so that returning the
children to the parent would place the children at substantial
risk of physical or mental injury.
Nonetheless, the superior court held that the state failed to
prove beyond a reasonable doubt, as required for the termination
of parental rights under the ICWA,
[FN14] that the children would sustain serious emotional or physical
damage if returned to their mother. The court based this
finding on Lewis having her substance abuse under control, living
with Ron Lewis, and making more intelligent decisions such as
avoiding Hanson. The superior court also held
a visitation and placement hearing in September 1999 in which
it ultimately ordered visitation between the children and their mother
under the supervision of the maternal grandparents. The state did
not appeal the superior court's decision.
FN14.
25 U.S.C.A. § 1912(f)
(2001).
B.
Facts and Proceedings Between the 1999 Termination Trial and the
Current Trial
Between the 1999 termination trial and this proceeding, Lewis made
significant progress. The superior court found that she was "clean
and sober" for the additional two-year period between the 1999
termination proceeding and the current action. She also maintained a
stable marriage with Ron Lewis, her new husband, free of
the domestic violence that endangered the children during her marriage
to Hanson. Her mental health improved to the point where
she was not being actively treated by JAMI and her
conservatorship was terminated. Lewis visited her children on four occasions
between August 2000 and October 2001 and fulfilled the requirements
of her DFYS case plan. Additionally, the social worker's visits,
including at least one unannounced visit, revealed a clean apartment
with no evidence of alcohol use or domestic violence.
Teresa and Kelly have lived with their current foster mother
in Sitka since December
1997. According to Dr. Sheila Clarson, a child psychologist who
conducted an assessment of the children's interactions with their mother,
grandmother, and foster mother, the children have developed significant attachments
to their foster mother during the more than four years
in which they have lived with her. Dr. Clarson also
testified that severing these bonds between the children and their
foster mother would be traumatic and might lead to a
number of psychological and developmental problems.
Despite Lewis's substantial progress since the 1999 trial in which
the superior court found that there was insufficient evidence to
terminate her parental rights, the state filed a second petition
to terminate Lewis's parental rights in July 2001. Following trial
held on October 29-31, 2001 the superior court again found,
based upon the above evidence, *442
that it would be in the children's best interest to
terminate Lewis's parental rights and allow them to be adopted
by their foster mother. But the superior court again "could
not find beyond a reasonable doubt that returning the children
to the mother would likely result in serious emotional or
physical damage." The court therefore denied the state's petition to
terminate Lewis's parental rights under the ICWA.
[FN15] The court also continued the children's placement with their
foster mother and noted that visitation between the children and
both Lewis and her parents had been hampered by the
foster mother and must be improved. The state appeals the
superior court's decision to deny termination
of Lewis's parental rights.
FN15.
Though appellants challenged the applicability of the ICWA at trial
and in their points on appeal, they subsequently waived that
challenge in their briefs.
III.
STANDARD OF REVIEW
We
uphold the superior court's factual findings unless they are clearly erroneous.
[FN16] Factual findings are held to be clearly erroneous if a review
of the entire record leaves us "with the definite and firm conviction
that a mistake has been made." [FN17]
FN16.
A.H.,
10 P.3d at 1160.
FN17.
E.A.
v. State,
623 P.2d 1210, 1212 (Alaska 1981).
Whether
the superior court's "findings comport with the requirements of ICWA
involves a question of law and will be reviewed de novo." [FN18]
Under this standard of review, we will "adopt the rule of law that
is most persuasive in light of precedent, reason and policy." [FN19]
FN18.
L.G.
v. State, Dep't of Health & Soc. Servs.,
14 P.3d 946, 950 (Alaska 2000).
FN19.
Guin
v. Ha,
591 P.2d 1281, 1284 n. 6 (Alaska 1979).
IV.
DISCUSSION
A.
The Superior Court Did Not Err by Not Considering the
Likelihood that Granting Custody to Melanie Lewis Would Cause Severe
Harm to Teresa and Kelly by Breaking Their Bonds with
Their Foster Mother.
The
state argues that the superior court erred by not considering the potential
harm that breaking the bond between the children and their foster mother
would cause Teresa and Kelly. The state bases this argument
on ICWA § 1912(f),
[FN20] which they claim must be read in conjunction with the Adoption
and Safe Families Act (ASFA),
[FN21] to impose a requirement that Lewis remedy her conduct in a timely
manner. They claim that this timeliness requirement mandates
that courts consider the bonds between the children and the foster mother
in determining whether granting custody to the biological parents is likely
to result in serious emotional or physical damage to the children. Because
the superior court considered the potential harm that the children would
suffer from the severing of their bond with their foster mother, we decline
to address whether the ICWA requires that these bonds be considered.
FN20.
25 U.S.C.A. § 1912(f)
(2001) states:
No
termination of parental rights may be ordered in such proceeding
in the absence of 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.
FN21.
The state argues that the Adoption and Safe Families Act
of 1997, Pub.L. 105-89, § 101,
111 Stat. 2115, 2116 (1998) (codified as amended at 42
U.S.C.A. § 671(a)(15)
(Supp.2002)), imposes a requirement that Lewis remedy her conduct in
a timely manner and that the reasonableness of the time
taken to remedy her conduct is "determined by whether returning
the child to the parent at this point 'would place
the child at substantial risk of physical or mental injury.'
" The state contends that because of Lewis's failure to
remedy her conduct in a timely manner the children developed
bonds with their foster mother, and that they will suffer
emotional harm if these bonds are severed by returning the
children to Lewis.
The superior court considered the children's attachment to the foster
mother in
determining that termination of Lewis's parental rights would be in
the children's best interests under the preponderance of the evidence*443
burden of proof required by Alaska Child in Need of
Aid Rule 18(c)(2)(C). [FN22]
The superior court made an oral finding, in support of
the above determination, that "even ignoring the bonding issue the
court would find by a preponderance of the evidence that
the return of the children to [Lewis] would be more
likely than not to result in serious emotional harm to
them." While the state is correct that this is the
only explicit mention of the bonding issue, this reference demonstrates
that the superior court considered the issue. The superior court
also relied on the testimony of Dr. Clarson, who testified
extensively on the bonding issue.
[FN23] The superior court also impliedly took the relationship between
the children and the foster mother into consideration in deciding
that "placement with the foster mother is appropriate and that
the children are doing well there." We hold that the
trial court's findings, in conjunction with its reference to the
bonding issue, constitute sufficient consideration of the likelihood that granting
Lewis custody would cause emotional harm to Teresa and Kelly.
FN22.
CINA Rule 18 states in relevant part:
(c)
Before the court may terminate parental rights, the Department must
prove: (1)
by clear and convincing evidence that
(A)
the child has been subjected to conduct or conditions described
in AS 47.10.011 and
(i)
the parent has not remedied the conduct or conditions in
the home that place the child at substantial risk of
harm; or
(ii)
the parent has failed, within a reasonable time, to remedy
the conduct or conditions in t he home that place
the child in substantial risk so that returning the child
to the parent would place the child at substantial risk
of physical or mental injury; or
....
(2)
by a preponderance of the evidence that
....
(C)
termination of parental rights is in the best interests of
the child; and
(3)
in the case of an Indian child, by evidence beyond
a reasonable doubt, including the testimony of qualified expert witnesses,
that continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child.
FN23.
Dr. Clarson's oral testimony dealt extensively with attachment issues. Her
report also dealt with the attachment between the children and
their foster mother, concluding that removal from the foster family
would likely cause severe emotional distress. The report also included
a number of relatively favorable evaluations of the interaction between
Lewis and her children.
B.
The Superior Court Did Not Err in Holding that the
Evidence Did Not Prove Beyond a Reasonable Doubt that the
Children Would Likely Be Seriously Harmed by Lewis's Continued Custody
over Them.
The
state argues that returning the children to Lewis's custody will likely
be harmful beyond a reasonable doubt because Lewis has failed to remedy
some of her damaging conduct, is incapable of remedying other damaging
conduct, and that the severing of the children's bond with the foster
mother will be emotionally damaging. Put another way, the
state contends that it has met its "burden to show beyond a reasonable
doubt that failure to terminate parental rights is likely to result in
serious emotional or physical harm to the children." [FN24]
While the superior court's findings of fact are sufficient to satisfy
the lesser burdens of proof necessary to terminate parental rights under
CINA Rule 18 in non-Indian termination cases, the superior court was not
clearly erroneous in finding that the higher burden of proof mandated
by the ICWA was not met by the state. The trial court did
not clearly err in finding that the evidence did not prove beyond a reasonable
doubt
that Lewis's custody of her children would likely result in serious emotional
or physical harm to the children.
FN24.
C.J.
v. State, Dep't of Health & Soc. Servs.,
18 P.3d 1214, 1218 (Alaska 2001).
Much of the state's argument focuses on past conduct that
has been sufficiently remedied so that there is at least
a reasonable doubt that the conduct will likely cause serious
harm to the children in the future. It appears that
Lewis might be among those parents who "are capable of
changing and overcoming the problems" that made them unfit parents.
[FN25] Significantly, the superior *444
court found that Lewis has sufficiently remedied the alcohol abuse
that greatly endangered her children. Though she continued to abuse
alcohol for eight months after Teresa and Kelly were taken
from her custody, she has been sober for over three
years. Likewise, Lewis has done a great deal to remedy
the domestic violence that once threatened Teresa and Kelly by
separating from Arnold Hanson. Lewis also appears to have responded
correctly on two occasions when her eighteen year-old son Gary
was drunkenly threatening her and Ron Lewis. On both occasions
the police were promptly called and Lewis obtained a restraining
order against Gary. Finally, since Lewis's marriage to Ron Lewis,
she has remedied many of the unhealthy conditions
that posed a danger to Teresa and Kelly. Whereas there
would be old food left on the floor or beer
cans everywhere when Lewis lived with Hanson, the home she
shares with Ron was found to be clean by a
state social worker who made a surprise inspection.
FN25.
Rita
T. v. State,
623 P.2d 344, 347 (Alaska 1981).
The state argues that Lewis is incapable of remedying some
of the conduct that poses a threat of harm to
her children. Most of these arguments focus on Lewis's continued
mental illness, inability to cope with stress, limited intelligence, poor
decisionmaking ability, and general lack of basic parenting skills, which
the state claims cannot be remedied. This court has previously
stated that "while mental illness alone
cannot form the basis of a termination order, when 'the
record links the [parent's] continuing mental illness with his past
instances of extreme neglect' there may be a basis for
finding that 'improper parental conduct [is] likely to continue.' "
[FN26]
It appears to be a close question whether aspects of
Lewis's continuing mental illness will cause improper conduct in the
future, and therefore prevent her from being able to care
safely for her children.
FN26.
A.H.
v. State, Dep't of Health & Soc. Servs.,
10 P.3d 1156, 1162
(Alaska 2000) (alteration in original) (quoting J.P.W.
v. State,
921 P.2d 604, 608 (Alaska 1996)).
In the 1999 termination proceedings the superior court found that
Lewis's mental illnesses, poor judgment, poor tolerance for frustration, and
inability to cope with the stress in her life posed
a risk of physical and mental injury to her children.
In the current termination proceedings, the superior court relied on
its factual findings from the 1999 trial. The court also
relied on new testimony from Drs. Mander and Clarson. The
testimony of both doctors, though partially unfavorable to Lewis, left
room for doubt as to whether she and her new
husband would be able to safely care for the children.
When this testimony is considered along with the facts that
Lewis's mental health has improved to the point where she
is not being actively treated by JAMI and that her
conservatorship has been terminated, we must conclude that it was
not clear error for the superior court to find that
the state had not proven that the children would likely
be physically harmed if they were returned to Lewis's custody.
Dr. Mander found that Lewis suffered from mild mental retardation,
that this condition impaired her judgment, and that she possibly
suffered from a major, undiagnosed mental illness. He also gave
a bleak evaluation of Lewis's ability to make extemporaneous decisions.
His final conclusion was that "it is
extremely unlikely that [Lewis] could function independently as an appropriate
parent ... and she is particularly unable to care for
special needs children." Nonetheless, Dr. Mander testified that people with
Lewis's diagnosed disorders are treatable and that neither the disorder
nor the mild mental retardation necessarily rule anyone out as
an effective parent. He also found that she has greatly
benefitted from terminating her abusive relationship with Arnold Hanson, entering
a supportive relationship with Ron Lewis, and her continued sobriety.
On cross-examination Dr. Mander said that it was only "more
likely than not that some harm would come to the
children if they were in [Lewis's] care, under her ...
sole supervision." Dr. Mander also qualified his opinion that the
children would likely be harmed if Lewis were caring for
them by herself by noting the positive influence of Ron,
and he ultimately recommended expanded, structured visitation between the children
and Lewis.
*445
Dr. Clarson's testimony also raised concerns about Lewis's ability to
parent Teresa and Kelly. She found that Lewis had difficulty
responding to both children effectively and did not set proper
limits for the children. Dr. Clarson also testified that Lewis
lacks many basic parenting skills and would need "personal counseling
dealing with regulating feeling, regulating emotions and expressing feelings, social
skills, training, [and] decision making" as a foundation in order
for there to be increased contact between her and her
children.
Nevertheless, Dr. Clarson ultimately recommended increased visitation between the children
and their biological family, saying "not only do I not
believe it would be harmful to the children to have
contact with their mother and grandparents, I believe that it
would be helpful." In light of this testimony, we cannot
say that the superior court clearly erred in finding that
ICWA's reasonable doubt standard was not met.
The state argues that the significant chance that severing the
bonds between the children and their foster mother will cause
emotional harm, when combined with the above concerns over Lewis's
parenting ability, is sufficient to meet the ICWA's high burden
of proof. There was certainly ample testimony from Dr. Clarson
supporting a conclusion that the children would be harmed by
ending that relationship. Dr. Clarson concluded that after a relationship
of almost four years, as of her testimony on October
29, 2001, the children saw their foster parents as their
psychological parents. She also expressed concern that the children would
"experience serious emotional damage if they were removed from their
placement" with their foster mother. Dr. Clarson warned that the
ending of this relationship would be extremely distressing to the
children and would lead to them acting out and then
becoming depressed, detached, and unable to succeed at school or
maintain peer relationships for a very long period of time.
Nonetheless, Dr. Clarson ultimately recommended more contact with Lewis and
Lewis's parents and family. Likewise, Dr. Mander recommended
increased visitation and some unsupervised visitation between the children and
their biological family. Additionally, Dr. Mander testified that professionals can
be of assistance in overcoming bonding issues. While this testimony
did not constitute an endorsement of granting custody to Lewis,
it also was not a recommendation that her parental rights
be terminated, something that this court has found instructive in
similar cases terminating parental rights under ICWA § 1912(f).
[FN27] The testimony supports the superior court's holding that the
state did not prove beyond a reasonable doubt that returning
the children to Lewis would be likely to cause them
severe emotional harm.
FN27.
See
J.A. v. State, Dep't of Family & Youth Servs.,
50 P.3d 395, 402 (Alaska 2002) ("Both experts recommended that
J.A.'s rights to his three children be terminated" and given
the experts' high degree of familiarity with the case materials
this "was more than sufficient to support the trial court's
conclusion under ICWA that J.A.'s children would likely be seriously
harmed if returned to him.").
The superior court was correct to draw a careful distinction
between the preponderance of the evidence and clear and convincing
standards of proof used in non-ICWA proceedings and the beyond
a reasonable doubt standard of proof demanded
by ICWA § 1912(f).
We hold that, because of the improvements in Lewis's ability
to care for her children and the doubt raised by
the expert testimony of Drs. Mander and Clarson, the superior
court was not clearly erroneous in finding that the state
failed to prove beyond a reasonable doubt that granting Lewis
custody of the children would "likely result in serious emotional
or physical damage to the [children]." [FN28]
FN28.
25 U.S.C.A. § 1912(f)
(2001).
V.
CONCLUSION
Because the superior court did not err in finding that
the state failed to meet the burden of proof demanded
by ICWA § 1912(f),
we AFFIRM the decision not to terminate Lewis's parental rights.
61 P.3d 438
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