author: GOLDEN, Justice.

text:
    2002 WY 69
    In the Matter of the Appeal of Shelley DEROMEDI, Hot Springs County Assessor. Shelley Deromedi, Hot Springs County Assessor, Appellant (Petitioner), v. Town of Thermopolis, Appellee (Respondent).
    No. 01-5.
    Supreme Court of Wyoming.
    May 7, 2002.

      Dan O. Caldwell III, Hot Springs County and Prosecuting Attorney, and Daniel L. Forgey, Special Deputy Hot Springs County and Prosecuting Attorney, Thermopolis, Wyoming, Representing Appellant. Argument by Mr. Caldwell.
    Michael S. Messenger of Messenger & Ju-rovich, Thermopolis, Wyoming, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, JJ., and SPANGLER, D.J., Retired.
   GOLDEN, Justice.

[T1] Appellee Town of Thermopolis (Town) established a public museum to house donated western wax figures and provide other scientific, educational, and cultural activities and displays. The Town entered into an agreement with a for-profit corporation to operate the museum and charge an admission fee to patrons. The Appellant Hot Springs County Assessor (Assessor) denied the Town a property tax exemption, the Hot Springs County Board of Equalization (CBOE) reversed that decision, and was in turn reversed by Wyoming's State Board of Equalization (SBOE). On appeal, the district court reversed the SBOE and reinstated the CBOE's order granting an exemption.

[12] We affirm the district court's decision to reverse the SBOE's decision to deny the exemption. The CBOE decision to grant the exemption is reinstated.

ISSUES

[138] The parties agree that the following statement of the issues is presented for our review:

1. Was the Hot Springs County Board of Equalization's July 20, 1999, Findings of Fact, Conclusions of Law and Order arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or unsupported by substantial evidence?
2. In the context of the first issue, is the Town of Thermopolis' wax museum used primarily for a governmental purpose or as a commercial, proprietary venture?

FACTS

[T4] In 1997, the executor of the Smith Family Trust of Jackson, Wyoming, offered to donate the contents of the former "Wax Museum of Old Wyoming" to a community that could provide a suitable location. Responding to public interest in the opportunity, the Town of Thermopolis (Town) purchased a vacant building in Thermopolis to house the museum. The Town applied for a Community Development Block Grant offered by the Wyoming Department of Commerce, Division of Eeonomic and Community Development, and was awarded $120,000. The application process required the Town to evaluate and project economic benefits to the community. With the grant in hand, the Town used the funds to establish a museum that not only housed the donated wax figures but included other scientific, cultural, and educational displays and activities.

[15] The Town contracted with a for-profit firm to operate the museum in exchange for $1,000 per year. The for-profit firm planned to charge admission to the museum. Before operations began, the museum appeared on the county assessor's rolls, and the Town applied for a tax exemption, which was denied by the Hot Springs County Assessor in March of 1999. The Town objected, claiming that its museum property was exempt under the state constitution and state statute, and requested a hearing before the County Board of Equalization (CBOE).

[16] The CBOE held a contested case hearing and issued Findings of Fact, Conclusions of Law and Order on July 20, 1999. It granted the exemption, and the assessor appealed to the State Board of Equalization (SBOE), which reversed the CBOE. The Town then appealed to the district court, which reversed the SBOE. This appeal followed.

DISCUSSION

Statutory Framework

[17] By statute, a town may establish, maintain and, in a manner the governing body determines, provide for a public museum. Wyo. Stat. Ann. § 15-1-108(a)(xxxii) (LexisNexis 2001). By constitutional and statutory provision, property owned by a town and used primarily for a governmental purpose is exempt from property taxes. Agency regulations have developed a list of considerations to assist with defining the term "used primarily for a governmental purpose," and approving exemptions. The precise issue before the CBOE and the SBOE was whether this museum is used primarily for a governmental purpose. Each agency interpreted and applied these regulations, and each reached a different conclusion.

Standard of Review

[¥8] Our standard of review for cases arising from a county board contested case proceeding, appealed to a state agency, and finally arriving in this Court on appeal is as follows:

Since in this case the county board was the finder of the fact and the state board heard no additional testimony, we will treat the state board as an intermediate level of review and accord deference only to the county board's findings of fact. Thus, the primary focus of our review will be whether the county board's decision was lawful and supported by substantial evidence.

Laramie County Bd. of Equalization v. Wyo. State Bd. of Equalization, 915 P.2d 1184, 1188 (Wyo.1996) (quoting Union Pacific Railroad Co. v. Wyo. State Bd. of Equalization, 802 P.2d 856, 859 (Wyo.1990)).

The party challenging the sufficiency of the evidence has the burden of demonstrating the agency's decision is not supported by substantial evidence. If the agency action is supported by substantial evidence, its decision should be reversed only for errors of law. If the agency did. not apply the correct rule of law, or applied it incorrectly, this Court does not defer to the agency's conclusion. The agency's errors of law are corrected by this Court.

Id. (quoting Butts v. Wyo. State Bd. of Architects, 911 P.2d 1062, 1065 (Wyo.1996)).

[¥9] The seope of appellate review of agency decisions is provided by statute:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions
of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16-8-114(c) (LexisNexis 2001).

We examine the entire record to determine if there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the ageney, and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the conclusions of the agency. It is more than a seintilla of evidence.

Laramie Cty. Bd. of Equalization, 915 P.2d at 1189.

[110] Although under Title 39, taxation of property is generally the rule, the exemptions provided for by § 89-11-105(a)(v) require that we apply the rule that where the established policy of the state is to exempt publicly owned property, the burden is placed on the taxing authority to establish taxability. City of Cheyenne v. Bd. of County Comm'rs of the County of Laramie, 484 P.2d 706, 708-09 (Wyo.1971). The mere ownership of property by a town does not exempt the property; it must also be used primarily for governmental purposes. Id. at 709. When a town uses the property in a proprietary manner,, the property is not exempt from taxation. Town of Pine Bluffs v. State Board of Equalization, 79 Wyo. 262, 288, 333 P.2d 700, 710 (Wyo.1958). The taxable status of property owned by a governmental entity must be determined as a question of fact by the use made of the property. City of Cheyenne v. Sims, 521 P.2d 1847, 1349 (Wyo.1974).

[111] We have recognized that the term "used primarily for a governmental purpose" is difficult to define but have found that it applied to buildings leased to profit-making corporations although located upon a municipally owned and operated airport. City of Cheyenne v. Bd. of Cty. Comm'rs of Laramie Cty., 484 P.2d at 709. There, we said that the mere fact that the city accomplishes such use through a lessee or receives rent in return for such use is not controlling. Id. We later decided that "[where the primary and principal use to which property is put is public, the mere fact that income is incidentally derived from it does not affect its character as property devoted to a public use, so as to prevent its being exempt from taxation." State Bd. of Equalization v. City of Lander, 882 P.2d 844, 850 (Wyo.1994).

[T12] The CBOE found that the museum would be used by the Town in many ways. Primarily, the museum would house the donated western wax figures, but the museum was expanded to include a Folk Center, textile studio, a conference room, and historical and educational displays. The CBOE found that the more scientific aspect of the facility would be run by Big Horn Prospecting, Inc. (BHP) and the other aspects would be operated by the Big Horn Basin Foundation. The CBOE also found that no firm agreement existed as to how any income generated would be spent, and "[tlaking into consideration the annual lease payment and the allocation between BHP and the Town as to the payment of certain costs of operating and maintaining the facility, in connection with the numerous scientific, educational and cultural activities intended to occur at the facility, it cannot be said that the primary purpose of the Museum is to directly enhance the Town of Thermopo-lis' income. The primary purpose of the facility is to encourage economic development and diversity and to better the quality of life for the local citizenry." The CBOE concluded that the primary purpose of the museum was not commercial or of a proprietary nature but served a governmental purpose for the educational and recreational benefit of the citizenry and to economically benefit the local economy in general. The tax exemption was granted.

[T183] The statutory exemptions provided for in § 39-11-105(a)(v) are not limited to those explicitly stated. By the statutory use of the term "including" the legislature intends to include other purposes even though not specifically enumerated. See City of Cheyenne v. Bd. of Cty. Comm'rs of Loramie Cty., 484 P.2d at 708. A museum is defined as "an institution devoted to the procurement, care, study, and display of objects of lasting interest or value." Merriam Webster's Collegiate Dictionary 765 (10th ed.2000). The Town points to many state statutes providing for the establishment and maintenance of public museums, and we agree that the legislature has recognized that museums serve a governmental purpose. The CBOE found that this particular museum would provide numerous scientific, educational, and cultural activities that would better the quality of life for the local citizenry. In this capacity, a public museum serves a governmental purpose similar to that served by a library, park, golf course, art gallery or other public recreational facility, and we hold that the CBOE's finding that the museum had a governmental purpose is supported by substantial evidence.

[114] According to the Assessor, the Town articulated its nongovernmental, pro-prictary purposes of enhancing tourism and promoting growth and economic development in its grant application, The Assessor contends that the SBOE's determination that the economic development purpose served by this museum precludes an exemption is the correct conclusion. Specifically, the SBOE stated that "[wJhile economic development may be a worthwhile objective, we do not believe that it rises to a governmental function." The Assessor further contends that the SBOE properly applied a tort lability test and concluded that the purpose is pro-prictary because the town is charging a fee to view the museum figures.

[115] We disagree that establishing a public museum that will provide scientific, educational and cultural activities to local citizenry precludes an exemption because that museum will also enhance tourism and promote growth and economic development. The Assessor and SBOE assume that because the museum will generate income, the Town is competing against private enterprise and the museum's purpose must be deemed proprietary. However, as the Town argues, it is authorized to establish and maintain a public museum by § 15-1-108(xxxii), and any economic benefits derived from so doing do not change its purpose from a governmental purpose to a proprietary undertaking. As we have already stated, the general rule is that where the primary and principal use is public, the property is exempt and income received from its use does not preclude the exemption. City of Lander, 882 P.2d at 850. In City of Cheyenne v. Bd. of Cty. Comm'rs of Laramie Cty., we noted that many authorities do apply a tort liability test and find a purpose proprietary if income is generated; however, we decided that generating income is not controlling, and merely renting a building to a lessee engaged in a profit-making venture is not a use for a nongovernmental purpose. 484 P.2d at 709. There, we decided that because the buildings were necessary or essential facilities to the efficient operation and maintenance of the airport, the improvements were not subject to taxation. Id. Here, the property's use is primarily for the governmental purpose of providing scientific, educational, and cultural activities in a museum, and any fees charged or profits generated by its lessee do not alter its tax exempt status.

[ 16] The order of the district court reversing the SBOE is affirmed, and the order of the CBOE is reinstated.

      . "The property of the United States, the state, counties, cities, towns, school districts and municipal corporations, when used primarily for a governmental purpose, and public libraries, lots with the buildings thereon used exclusively for religious worship, church parsonages, church schools and public cemeteries, shall be exempt from taxation, and such other property as the legislature may by general law provide." Wyo. Const. Art. 15, § 12.

      . Wyo. Stat. Ann. § 39-11-105 (LexisNexis 2001) governs exemptions and provides:
      (a) The following property is exempt from property taxation:

      (v) Property of Wyoming cities and towns owned and used primarily for a governmental purpose including:
      (A) Streets and alleys and property used for the construction, reconstruction, maintenance and repair of streets and alleys;
      (B) Property used to furnish sewer and water services;
      (C) City or town halls, police stations and equipment, traffic control equipment, garbage collection and disposal equipment and lands and buildings used to service and repair the halls, stations or equipment;
      (D) Parks, airports, auditoriums, cemeteries, golf courses, playgrounds and recreational facilities. Any charges for the use of the facilities shall not exceed the cost of operation and maintenance to qualify for the exemption;
      (E) Personal property used exclusively for the care, preservation and administration of city or town property;
      (F) Parking lots operated on a nonprofit basis.

      . Section 4. Publicly owned property-W.S. 39-11-105(a)®)-(vi).
      (a) Publicly owned property is not, per se, exempt from taxation. The property is exempt only "when used primarily for a governmental purpose."
      (b) The phrase "governmental purpose" cannot be precisely defined. The following considerations should be evaluated:
      (i) If a service or function is obligatory (one the governmental entity must perform as a legal duty imposed by statute), the function is governmental and the associated property is exempt.
      (ii) If a service is rendered gratuitously, supported by taxes, and for the public welfare or enjoyment generally, the property associated with providing such service is exempt.
      (ii) W.S. 39-11-105(a)(v) specifically identifies certain municipal property which is exempt (used primarily for a governmental purpose).
      (iv) W.S. 39-11-105(a)(i)(A)(E) and (fi)(A)-(D) identify specific uses of federal and state property which are not exempt (not used for governmental purposes).
      (v) Property owned by a governmental entity acting in its proprietary capacity is not exempt, (e.g. where a city enters the field of private competitive business for profit or into activities which may be and frequently are carried on through private enterprises).

        Wyoming Department of Revenue, Ad Valorem Tax Exemption Standards, Ch. 14, § 4 (filed Feb. 11, 1999).

      . W.S.1957 § 39-7, subd. 1(E).


source: Caselaw Access Project

license: Public Domain

text:
    2002 WY 70
    In the Matter of the Appeal of the TOWN OF THERMOPOLIS FROM A DECISION OF THE STATE BOARD OF EQUALIZATION-2000 PROPERTY VALUATION (TOWN OF THERMOPOLIS, PARCEL 2486-OLD WEST WAX MUSEUM). Town of Thermopolis, Appellant (Petitioner), v. Shelley Deromedi, Hot Springs County Assessor, Appellee (Respondent).
    No. 01-194.
    Supreme Court of Wyoming.
    May 7, 2002.

      Michael S. Messenger of Messenger & Ju-rovich, P.C., Thermopolis, Wyoming, Representing Appellant.
    Dan O. Caldwell III, Hot Springs County and Prosecuting Attorney, Thermopolis, Wyoming, Representing Appellee.

      Before LEHMAN, C.J., and GOLDEN, HILL, KITE, JJ., and SPANGLER, D.J., Retired.
   GOLDEN, Justice.

[11] In a companion decision, we held that by establishing a public museum to house donated western wax figures and provide other scientific, educational, and cultural activities and displays, Appellant Town of Thermopolis (Town) had acted with a governmental purpose that entitled it to its requested exemption from property tax for the tax year 1999. In this appeal, Appellee Hot Springs County Assessor (Assessor) denied the same tax exemption for the tax year 2000. The Hot Springs County Board of Equalization (CBOE) reversed the Assessor's decision; the CBOE was reversed by the Wyoming State Board of Equalization (SBOE), and the district court certified the appeal to this Court.

[12] For the tax year 1999, although the museum was not yet operating, we found that the evidence did support the CBOE's findings and conclusions, and we upheld its decision to grant the Town its requested tax exemption. When the CBOE considered this issue in 2000, the museum was operating, and it found that strong evidence supported a decision to grant the Town its tax exemption. We agree that the record of evidence strongly supports the CBOE's decision, and for the same reasons stated in our decision for the 1999 tax year, we reverse and reinstate the CBOE decision granting the property tax exemption for the year 2000. Deromedi v. Town of Thermopolis, 2002 WY 69, 45 P.3d 1150.

ISSUES

[13] The Town presents the following issue for our review:

Was the decision of the Hot Springs County Board of Equalization that real property assessed to the Town of Ther-mopolis by the Hot Springs County Assessor is used primarily for a governmental purpose and is therefore exerapt from property taxation pursuant to Wyo. Const. Art. 15, § 12 and Wyo. Stat. Ann. § 39-11-105(a)(v) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or unsupported by substantial evidence?

The Assessor states that the issues are:

Whether the Hot Springs County Board of Equalization's August 1, 2000 Findings of Fact, Conclusions of Law and Order were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or unsupported by substantial evidence; and
Whether the Wax Museum which is the subject of this appeal is used primarily for a governmental purpose?

FACTS

[14] In 1997, the Town received donated western wax museum figures. It sought and received a community development grant that it used to purchase property to house the figures and establish a museum with several different kinds of displays, objects, and activities. The Assessor denied the Town's tax exemption requests in both 1999 and 2000, and the Town objected, contending that the museum was used primarily for a governmental purpose. The Town received a contested case hearing before the CBOE in each of those years. For the year 2000, the Town also challenged the Assessor's valuation method. However, the CBOE upheld it, and the Town does not challenge that ruling in this appeal.

[15] In 1999, when the CBOE first considered the nature of the museum's purpose, the museum was still establishing itself but was to be operated in part by the for-profit corporation, Big Horn Prospecting, Inc (BHP). When the matter came before the CBOE in 2000, the museum was operating and found to hold the historical wax museum, the "old Mac's Bar," numerous artifacts, maps, etchings, interpretative materials, a historical teddy bear collection and other ed-ueational displays. The museum also contained a textile studio for displays, spinning, weaving, a studio and a gallery for art and handcrafts, and accommodations for public and private meetings.

[16] The CBOE found that the primary purpose of the museum was to provide educational and recreational benefit to the citizenry and to economically benefit the local economy in general, although its purpose also included enhancing sales tax revenues, and promoting tourism. BHP charged admission fees, but use of the gallery for public meetings was provided at no charge. Operating rights were granted to BHP in exchange for $1,000.00 per year rent. Additionally, the Town subsidized the museum in the amount of $1,200.00 annually for providing water, sewer and sanitation services. The Town was also obligated to assume some financial obligations until BHP showed positive cash-flow. At the time of the hearing, BHP had lost $129,992.02, but was expected to eventually break even. The Big Horn Basin Foundation, a non-profit organization, operated some of the facilities and programs.

[T7] For its first legal conclusion, the CBOE applied a Department of Revenue rule that states in part that if a service is rendered gratuitously, supported by taxes, and rendered for the public welfare or enjoyment generally, the property associated with providing such service is exempt. Based on the museum's present financial condition, the CBOE concluded that the Town is gratuitously providing the public with museum services and benefits and not for a commercial purpose.

[18] Secondly, the CBOE examined subsection (v) of the Department of Revenue rule which states: "where a city enters the field of private competitive business for profit or into activities which may be and frequently are carried on through private enterprises," the property would not be exempt. The CBOE found that, generally, public museums serve a governmental purpose, and concluded that, because the museums were different in nature and purpose, this museum did not compete with the Dinosaur Center, BHP's privately owned and operated museum.

[T9] For its third legal conclusion, the CBOE determined that the museum was a recreational facility, and the gallery an auditorium, within the meanings intended in Wyo. Stat. Ann. § 39-11-105(a)(v)(D) for which charges had not exceeded the cost of operating and maintaining it, and this entitled the Town to the exemption. Based on these three conclusions, the CBOE determined that the Town should be granted the exemption.

[110] The Assessor appealed the decision to the SBOE which reversed after again concluding, as it had in its earlier decision, that the primary purpose was economic development which is not a governmental funetion. It found that the museum's current unprofitability was irrelevant because the Town intended that the museum be profitable, and it rejected the conclusion that the Town's museum was not a competitor with the dinosaur museum. The Town filed a petition for review, and the district court certified the appeal to this Court pursuant to W.R.A.P. 12.09(b).

STANDARD OF REVIEW

[T1] As stated in our first decision, our standard of review for cases arising from a county board contested case proceeding, appealed to a state agency, and finally arriving in this Court on appeal is as follows:

Since in this case the county board was the finder of the fact and the state board heard no additional testimony, we will treat the state board as an intermediate level of review and accord deference only to the county board's findings of fact. Thus, the primary focus of our review will be whether the county board's decision was lawful and supported by substantial evidence.

Laramie County Bd. of Equalization v. Wyo. State Bd. of Equalization, 915 P.2d 1184, 1188 (Wyo.1996) (quoting Union Pacific Railroad Co. v. Wyo. State Bd. of Equalization, 802 P.2d 856, 859 (Wyo.1990)).

The party challenging the sufficiency of the evidence has the burden of demonstrating the agency's decision is not supported by substantial evidence. If the agency action is supported by substantial evidence, its decision should be reversed only for errors of law. If the agency did not apply the correct rule of law, or applied it incorrectly, this Court does not defer to the agency's conclusion. The agency's errors of law are corrected by this Court.

Id. (quoting Butts v. Wyo. State Bd. of Architects, 911 P.2d 1062, 1065 (Wyo.1996)).

[112] The seope of appellate review of agency decisions is provided by statute:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an ageney action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(i) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In exeess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Aun. § 16-3-114(c) (LexisNexis 2001).

We examine the entire record to determine if there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency, and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the conclusions of the agency. It is more than a scintilla of evidence.

Laramie Cty. Bd. of Equalization, 915 P.2d at 1188.

DISCUSSION

[T13] Although under Title 89, taxation of property is generally the rule, the exemptions provided for by § 89-11-105(a)(v) require that we apply the rule that where the established policy of the State is to exempt publicly owned property, the burden is placed on the taxing authority to establish taxability. Deromedi, at ¶10, 45 P.3d at 1153 (citing City of Cheyenne v. Bd. of Cty. Comm'rs of the Cty. of Laramie, 484 P.2d 706, 708-09 (Wyo.1971)). The mere ownership of property by a town does not exempt the property; it must also be used primarily for governmental purposes. Id. When a town uses the property in a proprietary manner, the property is not exempt from taxation. Town of Pine Bluffs v. State Board of Equalization, 79 Wyo. 262, 288, 333 P.2d 700, 710 (Wyo.1958). The taxable status of property owned by a governmental entity must be determined as a question of fact by the use made of the property. City of Cheyenne v. Sims, 521 P.2d 1347, 1349 (Wyo.1974).

[114] We have recognized that the term "used primarily for 'a governmental purpose" is difficult to define but have found that it applied to buildings leased to profit-making corporations although located upon a municipally owned and operated airport. City of Cheyenne v. Bd. of Cty. Comm'rs of the Cty. of Laramie, 484 P.2d at 709. There, we said that the mere fact that the city accomplishes such use through a lessee or receives rent in return for such use is not controlling. Id. We later decided that "[wlhere the primary and principal use to which property is put is public, the mere fact that income is incidentally derived from it does not affect its character as property devoted to a public use, so as to prevent its being exempt from taxation." State Bd. of Equalization v. City of Lander, 882 P.2d 844, 850 (Wyo.1994).

[115] In our first decision, we held that the CBOE's finding that the museum would be used by the Town primarily for the governmental purpose of providing scientific, educational, and cultural activities in a museum was supported by substantial evidence, and decided that it properly concluded that the Town was entitled to the statutory tax exemption. Deromedi, ¶ 13, 45 P.3d at 1154. We held that any fees charged or profits generated by its lessee do not alter the Town's tax exempt status. Id. at 115, 45 P.3d at 1155. Despite the Assessor's challenges to the CBOE's findings and conclusions in this case, our review shows that the CBOF's findings were again supported by substantial evidence and its conclusions proper. Its decision to grant the Town's tax exemption was again correct and will be upheld.

[116] This latest appeal raises questions whether this museum is a "recreational facility" or the gallery an "auditorium" within the meaning of the statute's language. The CBOE also queried whether the statute limits the lessees to charging only an amount equal to the cost of operations and maintenance. Because the property is owned by the Town and it has been proved that it will be used primarily for a governmental purpose, we need not consider these questions although we believe our previous decisions distinguished between profit-making ventures and charging for the cost of the operation and maintenance of the facilities. See City of Cheyenne v. Bd. of Cty. Comm'rs of the Cty. of Laramie, 484 P.2d 706, 708-09 (Wyo.1971).

[117] The SBOE's decision is reversed, and the CBOE's decision granting the exemption is reinstated.

      . Below is the applicable law:
      Department of Revenue, Ad Valorem Tax Exemption Standards, Ch. 4, § 4 (filed February 11, 1999):
      Section 4. Publicly owned property-W.S. 39-11-105(a)(i)(vi).
      (a) Publicly owned property is not, per se, exempt from taxation. The property is exempt only "when used primarily for a governmental purpose."
      (b) The phrase "governmental purpose" cannot be precisely defined. The following considerations should be evaluated:
      (i) If a service or function is obligatory (one the governmental entity must perform as a legal duty imposed by statute), the function is governmental and the associated property is exempt.
      (ii) If a service is rendered gratuitously, supported by taxes, and for the public welfare or enjoyment generally, the property associated with providing such service is exempt.
      (Hifi) W.S. 39-11-105(a)(v) specifically identifies certain municipal property which is exempt (used primarily for a governmental purpose).
      (iv) W.S. 39-11-105(a)(i)(4)(EB) and (ii)(A)(D) identify specific uses of federal and state property which are mot exempt (not used for governmental purposes).
      (v) Property owned by a governmental entity acting in its proprietary capacity is not exempt, (eg. where a city enters the field of private competitive business for profit or into activities which may be and frequently are carried on through private enterprises).
      Wyo. Const. Art. 15, § 12 states: "The property of the United States, the state, counties, cities, towns, school districts and municipal corporations, when used primarily for a governmental purpose, and public libraries, lots with the buildings thereon used exclusively for religious worship, church parsonages, church schools and public cemeteries, shall be exempt from taxation, and such other property as the legislature may by general law provide."
      Wyo. Stat. Ann. § 39-11-1105 (LexisNexis 2001) governs exemptions and provides:
      (a) The following property is exempt from property taxation:

      (v) Property of Wyoming cities and towns owned and used primarily for a governmental purpose including:
      (A) Streets and alleys and property used for the construction, reconstruction, maintenance and repair of streets and alleys;
      (B) Property used to furnish sewer and water services;
      (C) City or town halls, police stations and equipment, traffic control equipment, garbage collection and disposal equipment and lands and buildings used to service and repair the halls, stations or equipment;
      (D) Parks, airports, auditoriums, cemeteries, golf courses, playgrounds and recreational facilities. Any charges for the use of the facilities shall not exceed the cost of operation and maintenance to qualify for the exemption;
      (E) Personal property used exclusively for the care, preservation and administration of city or town property;
      (F) Parking lots operated on a nonprofit basis.

      . (D) Parks, airports, auditoriums, cemeteries, golf courses, playgrounds and recreational facilities. Any charges for the use of the facilities shall not exceed the cost of operation and maintenance to qualify for the exemption.


author: FABE, Chief Justice.

text:
    V.S.B., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF FAMILY AND YOUTH SERVICES, Appellee.
    No. S-9817.
    Supreme Court of Alaska.
    Feb. 15, 2002.

      Alex Koponen, Fairbanks, for Appellant.
    D. Rebecca Snow, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

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

FABE, Chief Justice.

I. INTRODUCTION

Vivian appeals the termination of parental rights over her four children. She has been diagnosed with Bipolar Disorder, which had previously made effective parenting difficult. The State asserts, and Superior Court Judge Mary E. Greene agreed, that despite the fact that Vivian is now stabilized on medication for her mental illness, she is still unfit to serve as an adequate parent for her four children, all of whom exhibit psychological and/or developmental difficulties that require special attention. Because all four children at issue are Indian children, the standards of proof required by the Indian Child Welfare Act (ICWA) apply. While Vivian made significant efforts at rehabilitation, the superior court adequately examined the record and applied the correct standards of proof in determining that it was in the best interests of the children to terminate Vivian's parental rights. Consequently, the decision of the superior court is affirmed.

II. FACTS AND PROCEEDINGS

A. Parties at Issue

Vivian, the appellant, is the mother of the four children (Scott, Amy, Michael, and Vero-pica) in dispute. Keith, who had been involved in the Division of Family and Youth Services (DFYS) action and in the action in the superior court, is the father of Scott, Amy, and Michael; the father of Veronica is deceased. Both Vivian and Keith had their parental rights terminated in superior court by Judge Mary E. Greene on August 29, 2000. Vivian has appealed this decision; Keith has not.

1. Vivian

Vivian has suffered from a long history of mental illness. The condition from which she suffers is Bipolar Disorder, for which she is currently taking medication to control her symptoms. Her first acute attack was precipitated by taking LSD in 1988 when she was fifteen and resulted in her being hospitalized, first in the Fairbanks Memorial Hospital and then in the Alaska Psychiatric Institute. Subsequent hospitalizations for mental illness have coincided with the births of each of her four children. The first such hospitalization occurred at the Alaska Psychiatric Institute in October 1991, shortly after the birth of her son Scott. Vivian had ceased taking her medication for her mental illness in November 1990. Fearing that Vivian might not be able to care for her baby because of her psychological condition, the obstetrician both requested a psychiatric consultation and contacted DFYS. Vivian was sent to the Alaska Psychiatric Institute and later given lessons in child care.

In 1992 Vivian was hospitalized in the psychiatric ward of Fairbanks Memorial Hospital while making accusations that Seott was being sexually molested. Approximately six months after the birth of Amy in June 1993, Vivian was again sent to the Alaska Psychiatric Institute and the psychiatric ward of Fairbanks Memorial Hospital. Upon the insistence of Keith, Vivian discontinued use of her prescribed psychotropic medications during her pregnancy, thus precipitating the recurrence of acute episodes related to her Bipolar Disorder. Vivian had another acute episode in 1994. As of September 1995, Vivian was again pregnant (with Michael) and off her medication at the insistence of Keith.

Vivian left Keith in April 1996, took her three children to a local women's shelter, and filed a domestic violence restraining order against Keith After becoming pregnant with Veronica by a now-deceased third party, Vivian reconciled with Keith. Vivian soon thereafter filed a second protective order against him when he ordered her and her sister out of his house. This second petition was filed in response to a domestic violence incident in which Keith allegedly grabbed Vivian and threatened to kill her after she kicked him in the nose during an argument. Despite leaving Keith, Vivian did not take her mental illness medications during her pregnancy. Soon after the birth of Veronica on October 6, 1997, Vivian asked her mother to take care of her children while she had a tubal ligation.

In January 1998 Vivian was arrested for assaulting her niece, who at the time was babysitting the children. At the time, all four children were living with Vivian, but only the three older children were present during the assault, Veronica having spent the night with her maternal grandmother. Upon her release from jail, Vivian went again to the Alaska Psychiatric Institute and then in April 1998 entered the Paul Williams House, an assisted living facility in Fairbanks for patients with mental illness. The Paul Williams House does not allow its patients to have children live with them. Vivian left the Paul Williams House in September 1999 and a month later moved in with Craig, whom she married the following month.

2. The children

Scott, the oldest child, was almost nine at the time of the superior court trial, He suffers from both Attention Deficit/Hyperactivity Disorder and Post Traumatic Stress Disorder. Scott displays aggressiveness toward other children and poor communications skills. In addition, he has serious psychological issues surrounding sex: He has been both a victim and a perpetrator of sexual abuse. Vivian reports that Seott told her that he had been sexually assaulted by his father. Scott has been sexually active on frequent occasions, including sexual intercourse with a ten-year-old girl when he was four years old and sexual intercourse with a fifteen-year-old female cousin when he was six. Seott is considered a threat to other children and has already sexually assaulted both another boy and his younger sister Amy. Seott was frequently beaten as a child. In therapy sessions, Scott described incidents of fighting between Vivian and Keith, including Keith raping Vivian and sending her to a friend to be raped.

Seott is currently in foster care. He was initially placed with his maternal grandparents, but later removed after the grandparents violated rules about contact between Scott and Vivian. All four children, including Scott, were placed for one night in an Indian preference foster home but were removed because the prospective foster parents did not feel they could handle children with such severe disciplinary problems. Social workers feared Scott would be a difficult foster placement because of his behavioral problems. However, Scott was quickly placed with his current foster family, to whom he appears to have developed some attachment and who have expressed a desire to adopt him. The family is non-Native. Social workers who worked with Seott testified that he needs to be placed in a caring and supportive environment, with only limited visitation with his parents, if he is to develop into an emotionally well-functioning adult. Scott has expressed some desire to visit with his mother and siblings.

Amy, seven years old at the time of trial, also exhibits behavioral problems as a result of being a victim of sexual abuse. She has a history of masturbating excessively in front of family members. She has been sexually molested by Scott. A child psychiatrist has also testified that Amy is physically aggressive with other children and has difficulty establishing appropriate physical boundaries. Amy is emotionally immature and has developmental difficulties with regard to her social interactions. Furthermore, she has Fetal Alcohol Effect and probably suffers from Attention Deficit Disorder.

Social workers have testified that Amy will need significant parental attention, in addition to continued therapy, if she is to overcome her developmental difficulties. Amy is currently in foster care with a non-Native family that has expressed a desire to adopt her. This is her third foster family, the first foster family having had Amy for only one night and the second declining to adopt Amy after having her for eleven months. Amy appears to have formed an emotional attachment to her current foster family. In therapy sessions following visits by Vivian, Amy has also expressed a desire to stay with Vivian.

Michael, who was four years old at the time of the trial, exhibits hyperactivity and self-destructive behavior. He has shown developmental delays in his speech and behavior. Michael also throws violent temper tantrums and is aggressive toward other children. His therapist believes Michael suffers from Post-Traumatic Stress Disorder and Reactive Attachment Disorder, but has ruled out Attention Deficit/Hyperactivity Disorder. Michael has trouble sleeping at night, including uncontrolled bouts of screaming, and is on medication for his sleeping difficulties Michael needs near-constant attention to ensure he is not a danger either to others or to himself. Michael is currently placed with a Native American foster family to whom he has gained some limited form of attachment; he shows overall improvements in his behavior. He has lived in multiple foster placements. Michael's current foster family has expressed a desire to adopt him.

Veronica was only two and a half years old at the time of trial. She suffers from a pronounced case of Fetal Alcohol Syndrome, including both physical and mental manifestations. She exhibits various developmental delays and will need continued therapy for the foreseeable future. Veronica was initially placed with relatives, but permanent adoption was not possible because the specialized resources she needed were not available in the area. Veronica is currently with an Alaska Native foster family who has expressed an interest in adopting her. Veronica was initially a rather aggressive child and displayed self-destructive behavior but following her foster placement is able to get along better with other children. Her development has almost caught up to that of a normal two year old.

B. Procedural History

DFYS took emergency custody of Scott, Amy, and Michael on December 19, 1997, with a petition for temporary custody filed two days later and granted on January 18, 1998 (retroactive to December 21, 1997). A petition for adjudication of a child in need of aid was filed for these three children on February 24, 1998. DFYS took emergency custody of Veronica on May 11, 1998 from her maternal grandmother, with whom all four children had been placed by DFYS, and filed a petition for adjudication the following day.

Vivian signed a stipulation for adjudication and disposition covering all four children on June 1, 1998. This stipulation laid out a three-phase plan whereby she could work toward regaining custody of her children. The first phase of the stipulation required that Vivian remain in the Paul Williams House, meet regularly with her case manager and therapist, and remain on her recommended medications. The second phase stated that after Vivian "has been sufficiently stabilized in her mental health treatment program" and received a substance abuse evaluation and appropriate treatment, DFYS would begin to arrange visitation with the children in consultation with each child's counselor. -If Vivian maintained stable mental health and completed the recommended substance abuse treatment, DFYS would, in phase three, refer her to parenting education programs with the goal of teaching Vivian the necessary parenting skills to be a capable mother. As the children began spending more time with Vivian, the parenting education would be arranged in-home and tailored to the specific needs of each child. Keith signed this stipulation on June 2, 1998, with similar requirements on his part if he were to be reunited with his children.

Based upon the facts agreed to in the stipulation, the court entered its findings and order of adjudication and disposition based on stipulation on June 15, 1998, committing all four children to the custody of DFYS for a period "not to exceed one year" from June 2, 1998. DFYS filed a petition for termination of parental rights on May 17, 1999. State custody over the children was extended through the end of the trial, as the trial could not be completed before the June 1 date.

A series of delays pushed back the date of the trial. Trial had initially been scheduled for November 1999. In a contested permanency hearing on December 8, 1999 the trial court found the continued foster placements of the children to be in their best interests. A conflict of interest with her first attorney forced the court to appoint a new attorney for Vivian, postponing the trial until February 2000. Just before trial was to begin, the Native Village of Buckland granted membership in their tribe to Vivian and all of her children and intervened in the case, forcing the trial to be postponed for another month The trial finally took place over sixteen days between March 22 and June 22, 2000. On July 28, 2000, Judge Greene presented her decision orally, followed by written findings and order on August 29, 2000. Vivian appealed on September 19, 2000.

III. STANDARD OF REVIEW

The Alaska Supreme Court will not reverse a trial court's factual findings in a parental rights termination case unless those findings are "clearly erroneous." This standard is met if this court is "left with the definite and firm conviction that a mistake has been made." The issue of whether or not the trial court's findings satisfy the requirements of the child in need of aid (CINA) statutes is a question of law that is reviewed de novo.

IV. DISCUSSION

A. The Arguments in Vivian's Brief Were Not So Cursory as to be Waived.

The State asserts that Vivian's brief treats the points of appeal in a cursory fashion and that those points should therefore be waived. More specifically, the State points to the fact that Vivian does not cite a single case in the brief and cites to only two federal statutes, failing there to mention the relevant related Alaska statutes. The State further alleges that Vivian's brief, the discussion seetion of which covers only four pages, contains only minimal exposition of its arguments. Finally, the State claims that Vivian's brief "lack[s] serious discussion of the evidentiary basis for her contentions."

While the State may be correct in its assertion that Vivian's brief is rather poorly constructed, the quality of the brief does not merit a determination that its points on appeal should be waived. Although Vivian's brief does not cite any cases in support of its arguments, it does provide an evidentiary basis for its argument. We thus conclude that the treatment of the issues is not so cursory that we should decline to consider the points on appeal.

B. The Superior Court Correctly Found that the Four Children Are Children in Need of Aid.

Before termination proceedings can be conducted, the superior court must determine that the children are children in need of aid under Alaska law. Vivian challenges the determination that the four children are children in need of aid. However, in the stipulation agreement signed by Vivian, she admitted that the children are children in need of aid. Vivian claims that the conduct placing the children in danger was committed by Keith and not by Vivian. However, the findings by the trial court do not support this conclusion.

The trial court found five bases for determining that the four children fell under the Alaska CINA statutes. Indeed, Judge Greene stated that "[these children are among the most damaged children" she had seen in twenty-five years "practicing in the area of children's law." If the findings and evidence are legally sufficient to satisfy any one of these five alternative requirements, the termination will be affirmed. The appropriate standard of proof is the "clear and convincing evidence" standard. Although the trial court did not explicitly say so, it implicitly found that this standard was satisfied by expressly stating, after setting out its CINA findings, that "[the court further finds that there is evidence beyond a reasonable doubt that each of these children would be likely to suffer serious physical and especially emotional damage if placed in the custody of either parent." (Emphasis added.) In context, this finding, though made under ICWA, effectively subsumes the required state law CINA findings. Whether the trial court's findings comport with CINA requirements is a question of law and accordingly reviewed de novo. We find that the record clearly supports the conclusion that Vivian, through her actions and inaction, caused the children to suffer harm in three ways (mental injury, sexual abuse, and substantial risk of physical harm). Accordingly, we do not reach the issue of whether the other two statutory findings were clearly erroneous.

First and foremost, the children are children in need of aid under AS 47.10.011(8)(A) because they have suffered "mental injury" as a result of "conduct by or conditions created by the parent." The severe mental injuries are detailed in the earlier discussion of the various psychological problems each of the four children faces. These injuries have been confirmed by multiple therapists and social workers. Each child has different psychological problems, though tendencies toward aggressive behavior are common in all four. It appears clear that the mental injuries suffered by each of the children have been caused or at least exacerbated by living with Vivian. In short, there is ample evidence of mental injury to justify bringing each child into state custody.

Secondly, the sexual abuse experienced by Scott and Amy makes them children in need of aid under AS 47.10.011(7). The trial court made special note of the fact that Vivian expressed concern that her children were being sexually abused and yet did not take any steps to protect them, nor did the children view her as someone who would protect them. No efforts were made to protect Amy from Seott. The trial court notes that parental neglect of the children contributed to the creation of this situation. Vivian alleges that Seott told her that he was sexually abused by Keith. Yet, she did little to prevent a recurrence in the future. Due to the sexual abuse they have suffered and the absence of steps by Vivian to prevent this abuse, Scott and Amy are children in need of aid.

Finally, Scott, Amy, and Michael suffered "substantial physical harm" or were placed at risk of "substantial physical harm" while in the home and as such can be considered children in need of aid under AS 47.10.011(6). Vivian admits to "spanking" the children and Scott related to a therapist an incident in which Vivian "punched" him for no reason. Seott also related having to protect his mother from his father. Scott, Amy, and Michael were all exposed to fighting between Keith and Vivian. Keith testified that he feared Vivian would hurt the children, though he never did see her actually hit the children. All of these establish by clear and convincing evidence that the children had experienced or were at risk of experiencing "serious physical harm" from Vivian prior to being taken into custody by the State..

C. The Superior Court Correctly Found that the Parental Rights of Vivian Should Be Terminated.

Because Vivian and each of her children were members of the Native Village of Buck-land, the standards of proof established by ICWA at 25 U.S.C. § 1912 apply to proceedings for the termination of parental rights. The key subsections for the present case are: § 1912(d), establishing a preponderance of evidence standard for demonstration that remedial services and rehabilitative programs have been provided and proven unsuccessful; and § 1912F), establishing a beyond a reasonable doubt standard for termination of parental rights.

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.

1. § 19128)

Vivian does not appear to challenge the validity of the trial court's findings under § 1912(F) and AS 47.10.088, despite the relatively high "beyond a reasonable doubt" standard of proof imposed on the State. The trial court did not explicitly address the requirements of either § 1912(f) or AS 47.10.088, but did find that "there is evidence beyond a reasonable doubt that each of these children would be likely to suffer serious physical and especially emotional damage if placed in the custody of either parent." The trial court then proceeded to rely upon expert testimony to support its decision terminating parental rights. Thus, the trial court satisfied ICWA with regard to the termination of parental rights. A review of the record leads us to conclude that this finding is not clearly erroneous.

In finding beyond a reasonable doubt that each child "would be likely to suffer serious physical and especially emotional damage if placed in the custody of either parent," Judge Greene cited both the lack of an emotional connection between the children and their mother and the harm that would be done to the children by moving them out of their current foster families. This finding is based not solely on Vivian's history of mental illness but also on the "flat affect" with which she treats her children. Consequently, the superior court found that it was in the best interests of the children to terminate Vivian's parental rights.

The abuse, both sexual and physical, suffered by Scott is so traumatic that he would suffer emotional damage by being returned to Vivian. Scott refuses to talk about Vivian or Keith in therapy. Past emotional damage makes it highly unlikely that Seott will form a healthy emotional attachment to Vivian. A child psychiatrist concluded that Scott would regress to his previous behavior if returned to either one of his parents. Furthermore, Scott needs to be in a family where the parents understand how to respond to his oversexualized behavior; it is doubtful that Vivian could do this, whereas his current foster family has shown some progress in this regard.

A social worker testified that Amy would be "devastated" by being moved out of her stable and supportive foster home to live with either of her parents, neither of whom understand Amy's emotional needs or can provide a loving environment. Amy no longer trusts Vivian to take care of her. Amy could lose the behavioral strides she has made if placed back in an environment where she does not trust her parents. Amy also has complicated emotional problems and needs that would be difficult for Vivian to address.

Michael also needs special parenting skills to help control his aggressive tendencies. This is best achieved by a stable home environment. His self-destructive behavior requires that he be monitored almost continuously. Michael has been unable to form an emotional attachment to his mother. Michael would be destabilized by any move, but especially by being placed with one of his parents.

Veronica, because of her Fetal Aleo-mother. hol Syndrome, requires special treatment that Vivian would not be able to provide. Veronica has no emotional attachment to her She needs to be placed in a supportive environment if she is to have continued healthy emotional development.

Vivian alleges that the trial judge erred in finding that expert parenting skills were required to handle the children. This is not an entirely fair characterization of the trial court opinion, which states that while Vivian is indeed correct that testimony exists suggesting the need for a "far better than average parent," this does not necessarily imply a particular expertise. As the State admits, none of the foster parents possess particular training or skills in addressing the special needs of these children. The trial court found, rather, that the combination of the developmental difficulties experienced by the children with the negative feelings they have for their parents would overwhelm the ability of either parent to meet the needs of the children and cause the children to feel insecure and unsafe. We find this conclusion is not clearly erroneous and that return of any of the children to Vivian would result in a serious risk of emotional damage to that child.

2. § 1912(d)

Vivian explicitly challenges the trial court's findings under § 1912(d). Vivian asserts that use of her medications had reduced the risk of future episodes of her Bipolar Disorder sufficiently to allow her to be an effective mother. Vivian sent a handwritten letter to Judge Greene saying that she has been attempting to get her life in order, both through participation in state-ordered treatment programs and by her marriage to Craig, and pleading with Judge Greene to allow her to retain custody of her children. However, while Vivian has complied with the rehabilitative efforts required of her, these efforts have failed to be successful in turning Vivian into a suitable parent. Thus, it is in the best interests of the children that Vivian's parental rights be terminated.

The trial court found by a preponderance of evidence that "[rleasonable and active efforts have been made to provide appropriate remedial services" to Vivian and that these efforts had been unsuccessful. Vivian actively participated in the three-phase treatment program laid out for her by DFYS. She has attended regular psychiatric appointments since her release from the Alaska Psychiatric Institute in the spring of 1998. By continuing to take her medication, which she has done, one doctor testified that Vivian can reduce the risk of an episode of Bipolar Disorder down to one mild episode in a ten-year span. She successfully completed substance abuse assessments in December 1998 and December 1999. She completed an alcohol education class in February 2000 and has only occasionally used alcohol, though even limited use may have negative interaction effects with her psychotropic medication. Vivian participated in one-on-one parenting training for seven months and has had regular visitation with her children. It is clear, therefore, that active efforts at remedial services have been provided to Vivian, a point which she concedes. Vivian has done all that has been asked of her and there is nothing in the record to suggest that Vivian is being insincere in her attempts at rehabilitation. Furthermore, she has married someone who appears to provide a more stable home setting than existed with Keith, though this is a point of some dispute.

Despite these efforts, Vivian's parenting skills have only marginally improved and are not sufficient to make her an adequate parent. The therapist who provided her with parental skills training testified that Vivian acted in a "child-like" manner around the children and rarely showed any emotional connection to them. She especially had problems dealing with Michael. A child services worker, acting at the behest of DFYS, assessed Vivian as not being capable of parenting any or all of her children and recommended permanent placement of the children in homes other than with their mother. This assessment was confirmed by a DFYS case worker, who testified that despite her increased focus and recent marriage Vivian was still incapable of parenting even one of her children. A child psychiatrist testified that Vivian may face difficulties responding to the negative feelings her children may have toward her if returned. The psychiatrist treating Vivian for her Bipolar Disorder testified that she should avoid "unduly stressful" situations to avoid future incidents of decompensation and admitted that the return of her children could be a source of stress. The trial court further found that the marriage to Craig was not sufficient to overcome the parenting difficulties demonstrated by Vivian.

DFYS informed Vivian that completion of the recommended treatment programs did not guarantee the return of her children. This position is supported by Alaska law. In situations where the parent has not participated in the rehabilitation programs offered, termination of parental rights is clearly justified. In the present case, though, Vivian has participated in the required programs and continues to take her medication. Still, the State can show that a parent has failed to remedy harmful conditions even when the parent has not been given an opportunity to actually parent his or her children. Compliance with treatment plans does not guarantee that parental rights will not be terminated because it cannot guarantee that adequate parenting skills will be acquired from the treatment regimen. It is entirely possible that there will be some improvement in overcoming mental illness without there being sufficient improvement to demonstrate adequate parenting skills. This is the case with Vivian, who may have reasonably controlled her Bipolar Disorder but has failed to acquire adequate parenting skills despite state efforts to provide her with such.

v. CONCLUSION

Vivian provided a poorly crafted brief, but not one so poor as to justify dismissing her appeal for cursory treatment. Each of the four children was clearly a child in need of aid. Judge Greene's finding that Vivian was incapable of being a suitable parent for any of her children is not clearly erroneous. Consequently, the decision of the superior court is AFFIRMED.

      . Pseudonyms have been used throughout this opinion for all family members.

      . Vivian alleges in her brief that the niece had sexually abused the children and that Vivian was just defending them. Vivian previously testified, however, that she does not remember why she got into a fight with her niece.

      . Vivian did not challenge the placement of Scott and Amy with non-Native families. The trial court found that good cause existed in both instances for deviating from ICWA placement preferences. See 25 U.S.C. § 1915(a).

      . 'The Native Village of Buckland did not request a transfer of jurisdiction over the foster placement or termination proceedings. See 25 U.S.C. § 1911(c) ("In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.").

      . H.C. v. State, Dep't of Health & Soc. Servs., 956 P.2d 477, 481 (Alaska 1998).

      . E.A. v. State, 623 P.2d 1210, 1212 (Alaska 1981).

      . A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946, 950 (Alaska 2000).

      . AS 47.10.088(a)(1)(A); CINA Rule 18(c)(1)(4A).

      . The conditions admitted to were those under then-AS 47.10.010(a)(6) (since amended in 1998), which covered physical abuse and neglect. It is unclear if Vivian is asserting that the children were never abused or neglected. Rather, she may be asserting only that the children presently would not be at risk of harm if placed with her.

      . Vivian further asserts that DFYS should have placed the children in her care once it learned that she had remarried into a stable home environment. This is relevant to the issue of Vivian's rehabilitative efforts but not to the determination of the child in need of aid status of the children.

      . These bases were AS 47.10.011(6) (substantial risk of physical harm); AS 47.10.011(7) (sexual abuse); AS 47.10.011(8)(A) (mental injury to the child); AS 47.10.011(9) (neglect); and AS 47.10.011(11) (mental illness of the parent contributing to a risk of harm to the child).

      . See A.H. v. State, Dep't of Health & Soc. Servs., 10 P.3d 1156, 1161 (Alaska 2000); A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946, 951 (Alaska 2000).

      . AS 47.10.0111.

      . E.M. v. State, Dep't of Health & Soc. Servs., 959 P.2d 766, 768 (Alaska 1998) (citing R.J.M. v. State, 946 P.2d 855, 861 (Alaska 1997)).

      . See supra Part ILA.2.

      . Vivian did at one point take the children to a women's shelter and has filed for protective orders against Keith but she subsequently allowed the children to live with him.

      . Scott did not clearly distinguish here between his mother and stepmother, stating only that his "mom" punched him. The superior court appears to have interpreted this as a reference to Vivian, which was also the impression of the social worker.

      . 25 U.S.C. § 1912(d) states:

      . K.N. v. State, 856 P.2d 468, 476 (Alaska 1993).

      . 25 U.S.C. § 1912(8) 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.

      . Because the children are Indian children, the State must satisfy the "reasonable doubt" standard established by ICWA, 25 U.S.C. § 1912(D. The procedures for termination of parental rights are set forth in AS 47.10.088(a)(1)(B) and require, in pertinent part, that
      the parent (i) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or (@i) has failed, within a reasonable time, to remedy the conduct or conditions in the 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.

      . Mental illness, absent related conduct, cannot be a basis for termination of parental rights. In re J.W., 921 P.2d 604, 607 (Alaska 1996) (citing K.N. v. State, 856 P.2d 468, 475 (Alaska 1993) and Nada A. v. State, 660 P.2d 436, 440 (Alaska 1983)). However, when continued mental illness is linked with past detrimental behavior, it can serve as a basis for termination of parental rights. J.W., 921 P.2d at 608 (citing K.N., 856 P.2d at 475). Vivian's illness has resulted in repeated hospitalizations that have restricted her ability to care for her children. Vivian left Veronica with Vivian's parents, even though she later acknowledged that they were too old to care for a small baby. This placed Veronica at risk of physical harm or mental injury. Furthermore, the acute episodes of Vivian's Bipolar Disorder, due to ceasing to take her medications while pregnant, resulted in periods of decompensation that led to some of the domestic violence incidents with Keith, thus placing the children in further danger. Because Vivian is now taking medication for her mental illness, there is a possibility that she will not in the future have any more psychotic episodes. However, it was not improper for the trial court to recognize this as a risk. Vivian's mental illness, when coupled with her past actions, is such that she cannot regain custody of her children without likely causing them continued mental injury. Furthermore, removal from the stability of their foster families would cause additional mental infury to the children.

      . Vivian also contends that because "any" placement of the children would result in emotional trauma there is no reason why they should not be reunited with their mother. In light of the ample evidence already discussed of the progress that each child has made with his or her foster parent, this assertion is clearly incorrect.

      . T.F. v. State, Dep't of Health & Soc. Servs., 26 P.3d 1089, 1093 (Alaska 2001) (affirming a termination of parental rights 'in light of [the mother's] forgone opportunities to remedy her conduct in the preceding seven months"); A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946, 951-52 (Alaska 2000) (affirming a termination of parental rights because mother "failed to participate" in several components of her reunification plan). A similar termination of parental rights is justified for a failure to take medication to control one's aberrant behaviors. See A.H. v. State, Dep't of Health & Soc. Servs., 10 P.3d 1156, 1163 (Alaska 2000) (holding that failure to take medication to control mental illness placed children at a substantial risk of continued harm).

      . A.H.v. State, 10 P.3d at 1166.

      . In re T.W.R., 887 P.2d 941, 945 (Alaska 1994), overruled on other grounds by In re S.A., 912 P.2d 1235 (Alaska 1996).

      . In re T.W.R., 887 P.2d at 946-47.


author: MATTHEWS, Justice. FABE, Chief Justice,

text:
    Gertrude A. DEMMERT and Jessie N. Jim, for themselves and for all other who are similarly situated, Appellants, v. KOOTZNOOWOO, INC., Appellee.
    No. S-9348.
    Supreme Court of Alaska.
    April 5, 2002.
    Rehearing Denied May 18, 2002.

      Fred W. Triem, Petersburg; John W. Wi-dell, Spencer Hall, Hall Zanzig Widell, Seattle; Douglas M. Branson, Pittsburg, for Appellants.
    Clark Reed Nichols, Perkins Cole LLP, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

Gertrude Demmert and Jessie Jim appeal the superior court's denial of their claims that Kootznoowoo, Inc., distributed corporate wealth and benefits in a discriminatory manner, that the corporation attempted to conceal its discriminatory practices from its shareholders, and that director conflicts of interest invalidated certain corporate programs. Because the superior court made findings of fact supported by the evidence that resolve these issues in favor of Kootz-noowo0o, we affirm the superior court's denial of appellants' claims.

II. FACTS AND PROCEEDINGS

Kootznoowoo is the Native village corporation for the village of Angoon. Its primary business is managing approximately 21,440 acres 'of timberlands selected pursuant to Section 506 of the Alaska National Interest Lands Conservation Act. Appellants are shareholders of the corporation.

One of Kootznoowoo's major activities respecting its lands is cutting timber. This activity presented a unique challenge, as the corporation was unable to select the lands surrounding Angoon for resource development. Kootznoowoo was forced to exchange its rights to land surrounding Angoon, on Admiralty Island, for lands on distant Prince of Wales Island. For some time, this meant that Kootznoowoo hired others to transport, process, and load its logs. Southeast Steve-doring Corporation provided the longshoring and stevedoring services necessary to load Kootznoowoo's logs.

In the summer of 1988 the management of Southeast Stevedoring approached Pat Joen-suu of Kootznoowoo with a proposal for loading logs at a site in Dora Bay located near Kootznoowoo's timberlands. Southeast Ste-vedoring recognized that if Kootznoowoo could establish a mooring system and log loading facility near its timberlands, it could avoid the costs and risks involved in towing log rafts to remote locations. Eventually, the two parties agreed to establish such a log loading facility, with Kootznoowoo providing the camp facilities and work force and Southeast Stevedoring providing management expertise and mooring buoys for the ships.

Kootznoowoo established a shareholder hiring preference for the longshoring work, and in order to gather the necessary labor force, the corporation helped to pay workers' transportation costs. While Kootznoowoo understood the payment of travel costs for laborers working at remote sites to be standard industry practice, the corporation could not afford to pay the entirety of the costs. Thus, Kootznoowoo paid for about half of the longshore workers' transportation costs. While the longshoring positions were open to all Kootznoowoo shareholders, Kootznoowoo would only pay travel costs for group trips originating in Angoon. The corporation believed that this ensured a more fully available, flexible, and coordinated crew of workers.

Meanwhile, Southeast Stevedoring managed the labor force, selected and trained workers for "skilled" positions, and negotiated with customers rates for loading logs "which recognized that transportation for longshore workers was a cost that should be passed through to the log owner."

Longshore workers could perform one of two types of work for the joint venture: skilled or unskilled. Southeast Stevedoring maintained an "active skilled working list" of people that would be dispatched to fill skilled positions in upcoming jobs. Southeast Steve-doring decided who to place on this list, who to dispatch for work, and who to consider for advancement. For unskilled positions, Kootznoowoo kept a rotation list of shareholders eighteen years or older who were capable of and willing to perform longshoring work. Southeast Stevedoring informed Kootznoowoo of the need for unskilled workers as it arose, and Kootznoowoo notified individuals whose names came up on the rotation list.

Appellants brought suit to challenge several aspects of Kootznoowoo's longshoring program, as well as the corporation's partial payment of longshore workers' travel costs. The superior court found for Kootznoowoo, upholding both its participation in the joint venture longshoring program and its practice of paying longshore workers' travel costs.

III. DISCUSSION

A. Neither Kootznoowoo's Distribution of Longshoring Employment Opportunities nor the Corporation's Payment of Longshore Workers' Travel Costs Constituted Discriminatory Distribution of Corporate Wealth or Dividends.

Appellants contest Kootznoowoo's distribution of longshoring opportunities as well as its payment of "travel subsidies" for longshore workers. They argue that by paying for longshore workers' transportation and lodging, Kootznoowoo is distributing corporate wealth in a manner that discriminates among its shareholders. Appellants also argue that because the corporation only subsidizes travel to and from Angoon, it excludes shareholders outside of Angoon from its pool of qualified workers. They claim that the opportunity to work as a longshore worker and the payment of travel subsidies constitute a form of wealth "not available to the 63.1% of Kootznoowoo's shareholders who reside elsewhere." Thus Kootznoowoo's operation of its longshoring program treats corporate shares in a discriminatory manner, violating the corporation's contract with its shareholders, as well as the Equal Treatment Rule codified in AS 10.06.8305, -.308, and -8313, applicable to the Alaska Native Village Corporation through the Alaska Native Claims Settlement Act §§ 7(R)(1)(A) and 8(c).

Kootznoowoo responds that its decision to enter into the joint venture with Southeast Stevedoring, its resulting employment of Kootznoowoo shareholders in longshoring positions, and its partial payment of those long-shore workers' transportation costs were all directed at maximizing the financial and employment opportunities of its general shareholder population. Because of the unique placement of its timberlands-remote from Kootznoowoo's headquarters in Angoon-the corporation faced a special challenge in finding a profitable way to process and load its logs. Kootznoowoo thus hoped to profit by processing its logs in a location convenient to its timberlands and by providing the labor for that work. As stated by the corporation's comptroller: "If you could provide for the profit motive and hire shareholders, why not? It was a ... good practice for the corporation."

While appellants contend that Kootznoo-woo's payment of transportation costs caused the corporation losses and imply that this demonstrates an intent to merely distribute benefits to selected shareholders, Kootznoo-woo argues that achieving a coordinated and productive labor force demanded that it pay some of the longshore workers' costs. Otherwise, many shareholders could not afford to travel to the remote Dora Bay site, and Kootznoowoo's plan to save money by utilizing its own worksite and labor force would fail. Kootznoowoo additionally asserts that it chose to pay transportation costs only to and from Angoon, because efficiency and maximum profit demanded that it have coordinated teams of workers ready to fly out together to work. Kootznoowoo thus maintains that its actions were in the best interests of all of its shareholders and that its contributions toward travel costs were not discriminatory dividends, but instead necessary and ordinary business expenses.

The superior court's findings of fact support Kootznoowoo's claims. These findings confirmed the existence of the Kootznoo-woo/Southeast Stevedoring joint venture and concluded that both parties "believed that the ... joint venture could develop Dora Bay into a major log port/ship loading facility to handle not only Kootznoowoo's logs, but also logs for Sealaska Corporation, ITT-Rainier, Reid Brothers Timber, Kukwan Forest Products, Ketchikan Pulp Company, Cape Fox, ete." The superior court recognized that Pat Joensuu "projected Kootznoowoo's share of the potential log loading revenues at over $2 million." These findings are based on the testimony of several Kootznoowoo board members as well as internal memoran-da and correspondence between members of the board and indicate the board's intent to benefit Kootznoowoo and its general population of shareholders.

Regarding Kootznoowoo's payment of travel costs for its labor force, the superior court found that "Kootznoowoo and Southeast Ste-vedoring considered transportation of long-shore workers to and from the remote work site at Dora Bay to be an ordinary and necessary business expense," and that Southeast Stevedoring accounted for this expense by negotiating rates with the joint venture's outside customers "which recognized that transportation for longshore workers was a cost that should be passed through to the log owner." These findings are based in part on testimonial evidence. Both Gerald Engel (Kootznoowoo's Lands and Resources Manager) and James Taro (President of Southeast Stevedoring) testified that it was common practice for log owners or stevedoring companies to pay transportation costs for longshore workers. In fact, one of the joint venture's competitors, West Coast Stevedor-ing, paid the entirety of transportation and lodging costs when it had employed Kootz-noowoo shareholders as longshore workers. Moreover, Kootznoowoo was able to deduct its transportation payments as a business expense on its federal income tax returns. In addition, the superior court points out that "ItJhere was no transfer of corporate assets without consideration. Kootznoowoo received consideration for the expense of transportation of longshorepersons between An-goon and Dora Bay in the form of work and increased profits."

Regarding Kootznoowoo's decision to only subsidize charter flights to and from Angoon, the court found credible the corporation's explanation that it was attempting to maximize efficiency and productivity by maintaining well-organized and prepared teams of workers. The court decided that "[hliring from Angoon assured an available pool of full complement longshoring gangs to timely meet the needs of the ship loading joint venture."

On the whole, the superior court concluded that "Kootznoowoo's policy of paying a portion of the travel costs of shareholders between Angoon and Dora Bay was not adopted as a distribution to its shareholders, but as a program that would increase Kootz-noowoo's profits and encourage shareholder employment." The court thus affirmed Kootznoowoo's motives and practices and rejected appellants' claims that the corporation was distributing corporate wealth and benefits in a discriminatory manner. The superi- or court based its finding upon a great deal of documentary and testimonial evidence. We do not think that its findings are clearly erroneous, and thus we uphold its findings and resulting conclusions.

B. Kootznoowoo Did Not Attempt to Hide or Fail to Provide Necessary Information to Its Shareholders.

Appellants also contend that Kootz-noowoo failed to inform all of its shareholders of the longshoring employment opportunities and travel subsidies available. Kootznoowoo responds that it did indeed inform its shareholders of the longshoring and travel subsidy programs. The corporation claims to have posted longshoring lists and its Longshore Assignment Policy conspicuously around Angoon, as well as publishing general information about the long-shoring program in corporation newsletters.

Onee again, based upon documentary and testimonial evidence, the superior court's findings of fact support Kootznoowoo. The court found that "Kootznoowoo's Longshore Assignment Policy was conspicuously posted in Angoon and sent to all longshorepersons" and that "Kootznoowoo's management and its board of directors made no attempt to hide or conceal any aspect of Kootznoowoo's Longshore Assignment Policy, including what has been referred to as the "travel subsidy.. " The court also noted in its findings that "(tlhe large number of shareholders participating in the longshoring program (approximately 155) creates the very strong inference that important aspects of Kootz-noowoo's Longshore Assignment Policy, including what has been referred to as the 'travel subsidy, were known by many shareholders throughout the Native corporation." As the superior court's findings are not clearly erroneous, we uphold its conclusion that Kootznoowoo neither failed to provide necessary information to its shareholders, nor hid such information from them.

C. There Was No Conflict of Interest among the Kootznoowoo Directors as to the Joint Venture Longshoring Program.

Finally, appellants claim that Kootz-noowoo's participation in the longshoring and "travel subsidy" programs is improper, because this participation was never approved by a majority of disinterested directors or shareholders. Appellants claim that most of the directors who» approved the programs were "interested" in that they used the long-shoring employment opportunities and travel subsidies to benefit themselves and selected shareholders.

Kootznoowoo argues that it broadly distributed information about the longshoring and "travel subsidy" programs to all-not just selected-shareholders and furthermore that it had no control over who got called to take advantage of these programs. The corporation explains that Southeast Stevedoring determined the number of workers needed for joint venture projects and selected those qualified to be on the active skilled workers list. Kootznoowoo asserts that it merely maintained a rotation list of unskilled workers and notified those workers when their names came up on rotation. Kootznoowoo also notes that only one person-Frank Jack, IJr..-ever served as both a Kootznoowoo director and a longshore worker at the same time, and that Mr. Jack was a skilled and experienced longshore worker before he ever became a director; he became a director well after the longshoring and "travel subsidy" programs were instituted.

The superior court again made findings of fact consistent with Kootznoowoo's position. With regard to the process of assigning long-shoring work, the court agreed that Kootz-noowoo had no control over who qualified for the skilled worker list or how many workers would be designated for a job; Southeast Stevedoring controlled this. Thus the court found no systemic way in which Kootznoowoo directors manipulated longshoring assignments to benefit themselves or other shareholders. The court reinforced this point by noting that Southeast Stevedoring selected individuals for the skilled worker list based on individual merit, not share ownership. While appellants alleged that many members of the Jack family especially benefitted from the programs, the court stated that "the evidence supports the finding that members of the Jack family attained their 'skilled' positions on the basis of individual merit," and that "[the frequency of their dispatch reflects their willingness to accept dispatch assignments."

Onee again, these findings, based on the totality of the evidence, are not clearly erroneous. They support the superior court's conclusion that Kootznoowoo's longshoring and travel subsidy programs were not illegally adopted or maintained by the board based on director conflicts of interest.

IV. CONCLUSION.

Based on the foregoing reasons, the judgment is AFFIRMED.

FABE, Chief Justice,

concurring.

Although I continue to believe that plaintiffs' allegations should have proceeded as derivative actions, I agree with the court that Judge Weeks correctly decided this case on the merits.

      . Prior to the formation of the Kootznoowoo-Southeast Stevedoring joint venture, several Kootznoowoo shareholders had worked as long-shore workers for West Coast Stevedoring Company, and that company had paid the costs for transportation between Angoon and remote log loading ports, as well as room and board costs for the longshore workers.

      . Kootznoowoo paid these costs regardless of whether the longshore workers hired were Kootznoowoo shareholders. The percentage of transportation costs paid by Kootznoowoo varied depending on changes in group flight prices. The longshore workers themselves paid a steady amount of $175 per trip. This amount originally constituted half of the cost per trip; however, as flight prices increased, the longshore workers' contributions covered a declining percentage of the transportation costs. Transactions were never directly between Kootznoowoo and its shareholders; rather, Kootznoowoo paid the transportation and lodging costs for the labor force, and Southeast Stevedoring withheld appropriate amounts from the longshore workers' paychecks to reimburse Kootznoowoo.
      The amount that Kootznoowoo contributed for lodging was disputed at trial. Longshore workers had $15 per day withheld from their paychecks to reimburse Kootznoowoo for their meals and lodging. Kootznoowoo claims that this amount covered any lodging costs incurred; however, appellants argue that the $15 per day did not completely cover the cost of feeding and housing the longshore workers, and that Kootz-noowoo was thus losing money on food and lodging, as well as on transportation. The superior court resolved this dispute, finding that "Kootznoowoo did not ultimately bear the costs for camp services for the longshore workers." The court noted that [als the operating expenses for camp services increased, those increases were passed along to the longshore workers (e.g., increased to $16.50 per day)," and that "[the amount the longshore workers were charged for camp services was approximately a 'break even' rate."

      . AS 10.06.305(b) provides that "[alll shares of a class shall have the same voting, conversion, and redemption rights and other rights, preferences, privileges, and restrictions...." AS 10.06.308 provides that "'a corporation may issue preferred or special classes of shares" only "H)f authorized by the articles of incorporation...." AS 10.06.313 states that "shares of the same class shall be identical. ..."

      . 43 U.S.C. §§ 1601-1641. ANCSA § 7(b)(1)(A), applied according to the provision of § 8(c), vests the shareholder of a Native village corporation with "all rights of a shareholder in a business corporation organized under the laws of the State."

      . See supra note 2. Kootznoowoo argues, and the superior court agreed, that the corporation did not internalize the longshore workers' lodging costs. While Kootznoowoo did initially pay for the lodging facility and food for longshore workers, Southeast Stevedoring withheld an amount from longshore workers' paychecks adequate to reimburse Kootznoowoo at "approximately a 'break even' rate."

      . This distinguishes Kootznoowoo's longshoring program from the financial security plan struck down in Hanson v. Kake Tribal Corp., 939 P.2d 1320 (Alaska 1997). In Hanson, we held that the financial security plan "was merely a method of distributing corporate assets to certain shareholders.... Indeed, the stated purpose of the plan was to provide financial security to the original shareholders of Kake." Id. at 1324.

      . See Henash v. Ipalook, 985 P.2d 442, 445 (Alaska 1999); Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997) (quoting Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979)) (Determination of net income is a question of fact and is reviewed under the clearly erroneous standard. A factual finding will be deemed clearly erroneous if the reviewing court is 'left with a definite and firm conviction on the entire record that a mistake has been made. ...' "). See also Parker v. Northern Mixing Co., 756 P.2d 881, 887-88 (Alaska 1988); State v. First Nat'l Bank of Ketchikan, 629 P.2d 78, 82 n. 4 (Alaska 1981).

      . See Demmert v. Kootznoowoo, 960 P.2d 606, 613 (Alaska 1998) (Fabe, J., dissenting); Hanson v. Kake Tribal Corp., 939 P.2d 1320, 1334 (Alaska 1997) (Fabe, J., dissenting).