author: LEHMAN, Justice. VOIGT, Justice,

text:
    2002 WY 102
    In the Matter of Application of NORTHWEST BAIL BONDS, INC. to Set Aside Bond Forfeiture. Northwest Bail Bonds, Inc., Appellant (Respondent), v. The State of Wyoming, Appellee (Petitioner).
    No. 01-56.
    Supreme Court of Wyoming.
    July 10, 2002.
    John H. Robinson, Casper, WY., Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and P. Olen Snider, Jr., Senior Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶ 1] This is an appeal from the partial forfeiture of a surety bond. We reverse and remand.

ISSUES

[¶ 2] Appellant Northwest Bail Bond, Inc. (Northwest) states the issue as follows:

Whether the District Court's decision to forfeit $5,000.00 of the $7,500.00 surety bond ... constituted an abuse of discretion.

Appellee State of Wyoming (State) phrases the issue in this manner:

Did the district court patently abuse its discretion in partially granting Northwest's motion to set aside the bail bond forfeiture?

FACTS

[¶ 3] Kristopher Bull (Bull) was scheduled to attend a probation revocation hearing in the district court at 8:80 a.m. on January 18, 2001. He overslept and failed to show up at the hearing. The district court responded by issuing a bench warrant for Bull's arrest and by ordering the forfeiture of his appearance bond issued by Northwest. Bull, however, did appear at the district court before 1:30 pm. on the same day where, upon the advice of counsel and Northwest, he turned himself in to the authorities.

[¶ 4] On February 1, 2001, Northwest filed a Motion to Set Aside Forfeiture of Bond. A hearing on that motion took place a month later. Interestingly enough, no evidence was adduced at the hearing. The district court relied on the factual assertions of counsel made during argument. The relevant factual assertions included: (1) Bull was aware of the scheduled hearing; (2) Bull missed the hearing because he "slept in"; (8) within an hour of missing the hearing, Bull contacted his attorney and Northwest, both of whom instructed him to turn himself in; (4) Bull and his attorney appeared at the district court later on the same day to attempt to have the hearing, but there was no time on the district court's schedule to do so; (5) Bull then turned himself in for arrest on the bench warrant; (6) there was no evidence of a specific pecuniary expense to the State occasioned by Bull's failure to appear; and (7) this was Bull's second failure to appear for a hearing in this case, his bond having been forfeited for the previous failure.

[¶ 5] In its oral summation before ordering partial remission of the forfeited bond, the district court noted (1) there was a previous failure to appear and consequent forfeiture of bond; (2) while there was no "big financial loss," the district attorney, the clerk of court, the court reporter, and defense counsel had all appeared for the scheduled hearing, and rescheduling the hearing was an involved process; (8) all this created quite an inconvenience for the district court; (4) Northwest had entered into an agreement to pay the district court if Bull failed to appear; and (5) Northwest "should have been aware" that the bond was set as high as it was because of Bull's previous failure to appear. After considering these facts, the district court determined that $2,500.00 of the forfeited amount should be set aside.

STANDARD OF REVIEW

[¶ 6] An appellate court will not interfere with a trial court's discretionary rulings absent a clear abuse of discretion. Semler v. Semler, 924 P.2d 422, 424 (Wyo.1996). This general rule applies to decisions on motions to set aside a bond forfeiture. "[Thhe decision to grant or deny a remission is a discretionary one that will only be overturned on appeal for a patent abuse of discretion amounting to arbitrary and capricious action." Application of Allied Fidelity Ins. Co., 664 P.2d 1322, 1325 (Wyo.1983). Assessing whether there has been an abuse of discretion involves determining whether the evidence was sufficient to support the district court's decision. Basolo v. Basolo, 907 P.2d 348, 353 (Wyo.1995). One factor in that assessment is whether the district court's "conclusions [were] drawn from objective criteria." Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). The burden is upon the appellant to show an abuse of discretion. Blake v. State, 933 P.2d 474, 477 (Wyo.1997).

DISCUSSION

[¶ 7] Northwest contends that under the established law with respect to forfeiture of bonds, the district court abused its discretion when it refused to set aside the entire amount of the bond forfeiture. In support of this position, Northwest points out:

1. While Bull was aware of the hearing, his failure to appear was not willful; he simply overslept.
2. Northwest urged Bull to turn himself in immediately.
3. The State endured no direct financial cost as a result of Bull's failure to appear.
4. There was little inconvenience to the State, since the other participants had to be in court for other cases, regardless of Bull's failure to appear.
5. There was little inconvenience or delay in getting the matter rescheduled.

In response, the State emphasizes:

1. This was Bull's second failure to appear in this case.
2. Northwest should bear some liability as the "guarantor" of Bull's appearance.

[¶ 8] It is important to note the procedural context of a contested bond forfeiture. W.R.Cr.P. 46(f)(1) provides that "Hlf there is a breach of condition of a bond, the court shall declare a forfeiture of the bail." (Emphasis added.) Use of the word "shall" indicates that this decision is mandatory rather than discretionary. LePage v. State, Dep't of Health, 2001 WY 26, ¶¶ 11, 12, 18 P.3d 1177, ¶¶ 11, 12 (Wyo.2001). The bail must be forfeited. The discretion of the district court is exercised under W.R.Cr.P. 46(F)(2):

The court may direct that a forfeiture be set aside in whole or in part, upon such conditions as the court may impose, if a person released upon execution of an appearance bond with a surety is subsequent ly surrendered by the surety into custody or if it otherwise appears that justice does not require the forfeiture.

These rules being structured as they are, the issue comes to the district court not by way of a motion from the State to forfeit the bail, but by way of a motion from the appellant to set aside the forfeiture. The intent and effect of this structure is to place the burden on the surety to show why the forfeiture should be set aside. State v. Martinez-Gonzales, 145 Ariz. 300, 701 P.2d 8, 10 (Ariz.App.1985); Bob Cole Bonding v. State, 340 Ark. 641, 13 S.W.3d 147, 149 (2000); State v. Hedrick, 204 W.Va. 547, 514 S.E.2d 397, 403 (1999).

[¶ 9] Application of Allied Fidelity Ins. Co. recited both general principles and specific factors that a judge should consider when faced with a motion to set aside a bail bond forfeiture. The general principles include:

The purpose of a bail bond is not punitive. Its object is not to enrich the government or punish the defendant. Nor can it be "used as a balm to soothe the disappointment resulting from the inability to punish and rehabilitate." . "Neither frustration nor its kinsman vindictiveness should be of weight in tipping the seales by which the elements of the court's decision is weighed." ~

Application of Allied Fidelity Ins. Co., 664 P.2d at 1325-26 (quoting United States v. Parr, 594 F.2d 440, 444 (6th Cir.1979)).

[¶ 10] Application of Allied Fidelity Ins. Co., at 1325-26. (citing United States v. Castaldo, 667 F.2d 20, 21 (9th Cir.1981), cert denied 456 U.S. 978, 102 S.Ct. 2245, 72 LEd.2d 858 (1982), and United States v. Parr, at 444) also enunciated that the district court should specifically consider in making its determination:

1. The willfulness of the defendant's breach of conditions;
2. The reasonable relationship between the forfeiture ordered and the cost and inconvenience to the government of regaining custody of the defendant;
3. The participation of the surety in apprehending the defendant;
4. -The cost, inconvenience, and prejudice suffered by the government as a result of the defendant's breach;
5. The amount of delay caused by the defendant's default and the stage of the proceedings at the time of the disappearance;
6. The public interest and necessity of effectuating the appearance of the defendant; and
7. Any explanation or mitigating factors presented by the defendant.

[¶ 11] In reviewing whether or not an abuse of discretion has occurred, we make an in depth review of the record before us. If the record is not adequate, we may remand the matter back for further proceedings and the development of the bases used by the court for its determination. Frankel v. Board of County Comm'rs of Teton County, 2002 WY 18, ¶ 12, 39 P.3d 420, ¶ 12 (Wyo.2002); Gillis v. F & A Enterprises, 813 P.2d 1304, 1308 (Wyo.1991); Board of County Comm'rs of Teton County v. Teton County Youth Servs., Inc., 652 P.2d 400, 411-14 (Wyo.1982).

[¶ 12] Our review of the record evidences no adequate basis for the determination made by the district court that Northwest should forfeit $5,000.00 of the bond posted. As stated above, in making its decision the district court was apprised by counsel that (1) Bull was aware of the scheduled hearing; (2) Bull missed the hearing because he "slept in"; (8) within an hour of missing the hearing, Bull contacted his attorney and Northwest, both of whom instructed him to turn himself in; (4) Bull and his attorney appeared at the district court later on the same day to attempt to have the hearing, but there was no time on the district court's schedule to do so; (5) Bull then turned himself in for arrest on the bench warrant; and (6) this was Bull's second failure to appear for a hearing in this case, his bond having been forfeited for the previous failure.

[¶ 13] Nevertheless, after being advised of this information, the district court solely focused on Bull's previous failure to appear for a hearing, on the inconvenience caused the district court and other participants by baving to reset the hearing, and on Northwest's awareness of the previous failure to appear and awareness of the relatively high bond amount. Indeed, although the district court was appraised of 1) the unwillfulness of Bull's nonappearance; 2) the participation of Northwest which resulted in Bull immediately turning himself in with no cost incurred by the government in apprehending him; 3) the amount of minimal delay caused by Bull's default and the probation revocation stage of the proceedings at the time of the nonappearance; and 4) an explanation of the mitigating factors presented, the district court simply did not address these issues in making its determination as required by Application of Allied Fidelity Ins. Co., at 1325-26. Therefore, it is virtually impossible for this court to determine whether these required and necessary elements were even considered by the district court.

[¶ 14] Moreover, we recognize that Bull's previous failure to appear for a hearing and Northwest's awareness of the previous failure to appear resulting in the relatively high bond amount were explicitly identified factors considered by the district court in making its ruling. However, these factors are not elements to be considered by the court as enumerated in Application of Allied Fidelity Ins. Co., at 1325-26.

[¶ 15] Review of the hearing transcript also makes it clear that the district court did not consider the cost and prejudice suffered by the government as a result of the Bull's nonappearance. No evidence was presented of any specific pecuniary expense to the State occasioned by Bull's failure to appear. Hence, such consideration was arguably impossible as no evidence was presented to the district court on this issue.

[¶ 16] Finally, we note that a thorough basis for the ultimate conclusion of the court must be explained to avoid any inference that the court's motivation was punitive or based on frustration or vindictiveness as prohibited. Application of Allied Fidelity Ins. Co., at 1325-26 (quoting United States v. Parr, 594 F.2d at 444).

CONCLUSION

[¶ 17] We remand to the district court for additional proceedings and development of facts as they relate to each of the factors set forth herein when a motion to set aside a bond forfeiture is involved.

VOIGT, Justice,

dissenting,

with which KITE, Justice, joins.

[¶ 18] I respectfully dissent. I believe the record is adequate for us to determine that the district court sufficiently considered the factors from Application of Allied Fidelity Ins. Co., 664 P.2d 1322 (Wyo.1983). A hearing was conducted and factors were considered. In addition, there was a partial, yet substantial, remission, which indicates that the district court was not acting out of vindictiveness. Beyond that, I would add another factor to the Application of Allied Fidelity Ins. Co. list; where the violation is not a mere technicality, the district court may decline to set aside a forfeiture for the purpose of deterring the defendant and others from future violations. See Accredited Sur. & Cas. Co. v. United States, 723 F.2d 368, 370 (4th Cir.1983) and State v. Hedrick, 204 W.Va. 547, 514 S.E.2d 397, 407 (1999). If we narrowly focus on the actual pecuniary loss to the State, what is to deter the defendant, or others in similar cireumstances, from failing to appear for court hearings?

      . On appeal, Northwest asserts that there was little inconvenience to the State, since the other participants had to be in court for other cases, regardless of Bull's failure to appear and that there was little inconvenience or delay in getting the matter rescheduled to the following week.

      . After the court's ruling, counsel for Northwest noted for the record that no evidence was presented by the State as to resultant expenditures incurred by the State and expressed his feelings that the court's order requiring $5,000.00 of the bond be forfeited appeared to be punitive in nature.

      . See footnote 2.


source: Caselaw Access Project

author: VOIGT, Justice. HILL, Chief Justice,

license: Public Domain

text:
    2002 WY 112
    TEREX CORPORATION, a Delaware corporation; and Louis Lopez, Appellants (Defendants), v. Betty A. HOUGH, Personal Representative of the Estate of Roy W. Hough, deceased, Appellee (Plaintiff).
    No. 01-173.
    Supreme Court of Wyoming.
    July 18, 2002.

      Anthony T. Wendtland of Davis & Cannon, Sheridan, WY, Representing Appellant Terex Corporation.
    Joe M. Teig, P.C. and Paula A. Fleck of Holland & Hart, LLP, Jackson Hole, WY, Representing Appellant Louis Lopez.
    Stephen H. Kline of Kline Law Office, P.C., Cheyenne, Wyoming, and Kenneth E. Barker of Barker, Wilson, Reynolds & Burke, Belle Fourche, SD, Representing Ap-pellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   VOIGT, Justice.

[T1] This is an appeal from the district court's dismissal of a wrongful death action based on a lack of subject matter jurisdiction. We conclude that, at the time the district court ruled on the motions before it, it did have subject matter jurisdiction, and we, therefore, reverse. In doing so, we overrule our previous holding in Makinen v. PM P.C., 893 P.2d 1149 (Wyo.1995).

ISSUES

[¶ 2] The appellant, Terex Corporation (Terex), states the issues as:

1. Are the District Court's Findings, Conclusions and Order concerning Plaintiffs initial effort to file a wrongful death case against Defendants, Terex Corporation and Louis Lopez, void because the District Court lacked subject matter jurisdiction when it attempted to enter them?
2. Pursuant to Makinen v. PM P.C., 898 ih °° P.2d 11491 1158 (Wyo.1995) citing AMPGIM v. Wyoming Livestock Board, 851 P24 769, TTL (Wyo.19983), should the Court address whether the Wrongful Death Act['s] two year filing requirement precludes MYS. Hough's ability to pursue a cause of action for wrongful death?
3. Are Mrs. Hough's pending wrongful death claims viable given Mrs. Hough's acknowledged failure to meet the two year condition precedent to filing a wrongful death suit in Wyoming?

The appellant, Louis Lopez (Lopez), phrases the issues as:

A. Did the District Court err as a matter of law when it entered Conclusions of Law before finding it lacked subject matter jurisdiction and dismissing Appellee's Complaint without prejudice?
B. Does Wyoming's "savings statute," W.S. § 1-8-1118, apply to Appellee's wrongful death claim?

The appellee, Betty A. Hough as personal representative of the Estate of Roy W. Hough (appellee), defines the issues as:

1. Do Appellants raise sufficient issues regarding the judgment below to sustain an appeal?
2. Does the savings statute, Wyo. Stat. 1-8-118, apply to allow the plaintiff to refile a wrongful death case which was commenced within two years of the decedent's death, but eventually dismissed without prejudice for lack of subject matter jurisdiction, where the action is refiled within one year of the dismissal of the original action, but not within two years of the death of the decedent?

FACTS

[¶ 3] The incident giving rise to this action occurred on July 2, 1998. Lopez drove a coal haul truck over the cab of the pickup truck in which Roy Hough (Hough) was sitting. Hough later died from the injuries he sustained in the accident. Triton Coal Company employed Hough at its Buckskin Mine near Gillette where the accident occurred. 'Torey designed and manufactured the coal nau! truck that Lopez was driving. Hough's widow, the appellee, filed a wrongful death complaint on June 28, 2000, against Lopez ang Terex, The complaint alleged against Lopez willful, wanton, and/or intentional acts, and against Terex it alleged products Hability, On January 16, 2001, Terex filed a Motion for Judgment on the Pleadings Pursuant to W.R.C.P. 12(c) and an Alternative Motion for Summary Judgment Pursuant to W.R.C.P. 56, alleging that the district court lacked subject matter jurisdiction because the appellee had failed to serve the complaint on the Wyoming Attorney General and the Director of the Wyoming Worker's Compensation Division as required by Wyo. Stat. Ann. § 27-14-105(b) (LexisNexis 2001), the pertinent portion of which reads:

The director and the attorney general shall be served by certified mail return receipt requested with a copy of the complaint filed in any suit initiated pursuant to subsection (a) of this section. Service of the complaint on the director and attorney general is a jurisdictional requirement in order to maintain the suit.

[¶ 4] The appellee responded to Terex's motions by having the attorney general and the director served on January 18, 2001. About a week later, she filed a Motion to Amend Complaint to reflect that service. The district court heard Terex's motions on February 14, 2001. On July 11, 2001, the district court entered Findings of Fact and Conclusions of Law, and a separate Order Dismissing Case Without Prejudice and Denying Permission to Amend Complaint. Te-rex, Lopez and the appellee all appealed.

DISCUSSION

[¶5] "Subject matter jurisdiction is the authority to hear and decide cases of the general class to which the proceedings in question belong." Bruns v. TW Services, Inc., 2001 WY 127, ¶ 16, 36 P.3d 608, 618 (Wyo.2001). This Court has stated:

"It is fundamental, if not axiomatic, that, before a court can render any decision or order having any effect in any case or matter, it must have subject matter jurisdiction. Jurisdiction is essential to the exercise of judicial power. Unless the court has jurisdiction, it lacks any authority to proceed, and any decision, judgment, or other order is, as a matter of law, utterly void and of no effect for any purpose. Subject matter jurisdiction, like jurisdiction over the person, is not a subject of judicial discretion. There is a difference, however, because the lack of jurisdiction over the person can be waived, but lack of subject matter jurisdiction cannot be. Subject matter jurisdiction either exists or it does not and, before proceeding to a disposition on the merits, a court should be satisfied that it does have the requisite jurisdiction."

Boyd v. Nation, 909 P.2d 323, 325 (Wyo.1996) (quoting United Mine Workers of America Local 1972 v. Decker Coal Co., 774 P.2d 1274, 1283-84 (Wyo.1989)).

The district court concluded that it lacked subject matter jurisdiction over this wrongful death case because binding precedent, namely Makinen, 893 P.2d 1149 and Boyd, 909 P.2d 323, dictated that conclusion. The facts in Makinen are nearly identical to those in this case. In Makinen, we resolved the issue of subject matter jurisdiction as follows:

In order to determine whether the district court had jurisdiction over this case, we must construe the relevant portions of § 27-14-105. In construing a statute, we must determine whether the statute is clear or ambiguous. "[A] statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability." Allied-Signal, Inc. v. Wyoming State Board of Equalization, 813 P.2d 214, 220 (Wyo.1991). "[A] statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations." 813 P.2d at 219-20. "[WJlhether an ambiguity exists in a statute is a matter of law to be determined by the court." 813 P.2d at 220. If the language of a statute is clear and unambiguous, we apply the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Soles v. State, 809 P.2d 772, 773 (Wyo.1991).
The Makinens contend that the district court had jurisdiction over the case because they served the complaint on the director and the attorney general in compliance with the statutory notice requirement. They assert that § 27-14-105 is ambiguous with respect to when the complaint must be served upon the director and the attorney general, and they argue that service of the complaint is not required in order for the district court to obtain jurisdiction over the case. PM P.C. and Mr. Larscheid maintain that the statute is not ambiguous. They contend that, pursuant to § 27-14-105, service must be made upon the director and the attorney general before or concurrently with the filing of an action in order for the district court to acquire jurisdiction over the matter.
Section 27-14-105 is clear and unambiguous in the context of this case. Under the clear language of the statute, the district court does not obtain jurisdiction over any case which involves an injured worker until the complaint has been served upon the director and the attorney general. Accordingly, the district court did not have jurisdiction over the case at the time that PM P.C. and Mr. Larscheid filed their motion for a summary judgment.

Makinen, 893 P.2d at 1152-58 (emphasis added). The result in Boyd was similar, but the facts were different. In Boyd, the issue of subject matter jurisdiction was raised sua sponte by this Court because the record contained no indication that the director and the attorney general had ever been served with the complaint. Boyd, 909 P.2d at 326.

[¶ 7] We now find several things wrong with the Makinen decision. To begin with, Wyo. Stat. Ann. § 27-14-105(b) is ambiguous because it contains no deadline for service of the complaint upon the attorney general and the director, and because the word "maintain" does not clearly establish a point at which service must be accomplished. This situation is unlike the filing of a complaint under the Wyoming Governmental Claims Act, where the claim must be made and denied prior to suit, so the complaint must reference that process. Wyo. Stat. Ann. § 1-89-118 (LexisNexis 2001); Dee v. Laramie County, 666 P.2d 957, 959 (Wyo.1983). Here the complaint could not very well reference service that has not yet occurred, and we know of no precedent requiring service of a complaint before it is filed.

[¶ 8] The second thing wrong with Maki-nen is that, while we recognized in that opinion that the district court would obtain jurisdiction over the case upon service of the complaint upon the attorney general and the director, we declared that the district court lacked jurisdiction despite the facet that the attorney general and the director had been served prior to the motion hearing where the district court found it had no jurisdiction. Makinen, 893 P.2d at 1153. We held, without basis in the statute or other authority, that the district court lacked jurisdiction because service had not yet been accomplished at the time the summary judgment motion was filed. Id. Yet, there is nothing in the statute to suggest that the date of filing of a motion seeking dismissal or a similar remedy establishes the period of limitation for service.

and the director. [¶ 9] Finally, our present review leads us to conclude that in Makinen, we paid insufficient attention to the legislative purpose behind the requirement for service of the complaint upon the attorney general That legislative purpose was recently emphasized in Streeter v. Amerequip Corp., 968 F.Supp. 624, 629 (D.Wyo.1997):

Wyoming law requires that legislative intent be ascertained, as nearly as possible, from the language of the statute viewed in the light of its object and purpose. Moncrief v. Harvey, 816 P.2d 97, 105 (Wyo.1991). One of the significant provisions of the Wyoming Worker's Compensation Act, § 27-14-105(b) ... is designed to protect the state's lien rights, in the event of a settlement or judgment in favor of the injured worker in an action involving third parties or others. The provisions requiring notice to the Department of Employment and the Attorney General are designed to provide a mechanism that will ensure preservation of the State of Wyoming's lien rights. * * * The primary beneficiary of Wyo. Stat. § 27-14-105 is the State of Wyoming.

In Streeter, 968 F.Supp. at 630, Chief Judge Johnson cited to Clark v. Pacificorp, 118 Wash.2d 167, 822 P.2d 162 (1991) and Hattaway v. McMillian, 903 F.2d 1440 (lith Cir.1990), as cases where statutes similar to Wyoming's were interpreted so as to allow a plaintiff to eure noncompliance with the service requirements before trial, at least so long as no prejudice to the State had been shown. Finally, Chief Judge Johnson concluded:

In the case now before the Court, granting defendant's motion to dismiss for failure to comply with the notice requirements of Wyo. Stat. § 27-14-105 would frustrate the legislature's purposes in enacting this provision. The Act is intended to be a sword for the State of Wyoming, one intended to permit the State to protect its reimbursement and lien rights in cases where an injured employee either settles or receives a judgment in his or her favor after having also received worker's compensation benefits. The Act is not intended to be a shield for third party tortfea-sors.

Streeter, 968 F.Supp. at 631. In the context of a case such as this, the State is best able to protect its lien rights and to recoup benefits paid if the suit is allowed to continue rather than being dismissed through an overly technical reading of the service require-meant.

[¶ 10] The gist of the decision in this case is the recognition that a plaintiff in a suit brought under Wyo. Stat. Ann. § 27-14-104 (LexisNexis 2001) and Wyo. Stat. Ann. § 27-14-105(a) must be allowed a reasonable amount of time to meet the requirements of Wyo. Stat. Ann. § 27-14-105(b). We realize that the statute itself imposes no limitation on the time in which this may be accomplished, and we are mindful of the constitutional separation of powers. Wyo. Const. art. 2, § 1. Yet, because Wyo. Stat. Ann. § 27-14-105(b) makes such service a jurisdictional requirement, it is imperative that a time limitation exist. Otherwise, the question of the district court's jurisdiction could remain "in limbo" indefinitely.

[¶ 11] This Court has a "general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law." Wyo. Const. art. 5, § 2. This control " 'encompasses the authority to prescribe rules of practice and procedure in those courts' " Squillace v. Kelley, 990 P.2d 497, 501 (Wyo.1999) (quoting White v. Fisher, 689 P.2d 102, 106 (Wyo.1984). Consistent with that authority, we conclude that it is appropriate, prospectively, to establish a specific time limitation during which, pursuant to Wyo. Stat. Ann. § 27-14-105(b), the attorney general and director must be served with a copy of the complaint. Because "within a reasonable time" is a standard that would provide little guidance to litigants or the district court, we hold that service must be made within sixty days of the complaint's filing. We choose sixty days because that is the same period under W.R.C.P. 3(b) for service of the complaint on the party defendants if the suit is to be deemed to have been commenced on the date of filing.

CONCLUSION

[¶ 12] The district court had subject matter jurisdiction over this matter at the time it ruled on Terex's motions. The holding to the contrary in Makinen, 898 P.2d 1149 is overruled. We reverse and remand for further proceedings in the district court. This resolution renders the other issues raised herein moot.

HILL, Chief Justice,

dissenting.

[¶ 13] If this case had arisen as a matter of first impression, I might have been inclined to agree with the majority. However, seven years ago this Court unanimously found the language in Wyo. Stat. Ann. § 27-14-105 to be unambiguous. The majority agrees that the facts of this case are nearly identical to those in Makinen, yet reaches a different result based on the conclusion that the language in § 27-14-105 is ambiguous. Yet, the language of the statute has not changed since we decided Makinen Furthermore, I do not ascribe the weight to the legislature's purported intent in adopting § 27-14-1105 that the majority assigns to it. In fact, in my opinion the legislature's intent can be discerned to support continuing adherence to the rule laid out in Makinen. In the seven years since we decided Maki-nen, the legislature has not amended the statute. If the legislature disagreed with our interpretation there, then it certainly had the opportunity to rectify the effect of that decision. It is telling that it did not. In State Tax Commission v. BHP Petroleum Company, Inc., 856 P.2d 428, 487 (Wyo.1998), we held that Section 14 petitions pursuant to Wyo. Stat. Ann. § 39-1-804(a)(xiv) are not constrained by a time limit. Later, when our interpretation of that statute was challenged, we said: "The legislature is aware of this decision, and it has not amended Section 14 to include a time limit. We believe that limiting the time to present Section 14 allegations is a job for the legislature, not this court." Exxon v. Board of County Commissioners, Sublette County, 987 P.2d 158, 164 (Wyo.1999). Similarly, the legislature was aware that we required service upon the director and the attorney general as a condition precedent for jurisdiction to vest in the district court. In light of the legislature's acquiescence in our interpretation of § 27-14-105, any change thereto is a job for the legislature and not this Court.

[¶ 14] I do not believe in following the doctrine of stare decisis blindly. However, in this case, I see no compelling reason to abandon our unanimous decision in Makinen.

      . On appeal, neither appellant challenges the district court's determination that it lacked subject matter jurisdiction, and a cross-appeal by the appellee was dismissed at her request prior to oral argument. Nevertheless, the " 'first and fundamental question on every appeal is that of jurisdiction; this question cannot be waived; it is open for consideration by the reviewing court whenever it is raised by any party, or it may be raised by the court of its own motion.' " Hirschfield v. Board of County Com'rs of the County of Teton, 944 P.2d 1139, 1141 (Wyo.1997) (quoting Pawlowski v. Pawlowski, 925 P.2d 240, 243 (Wyo.1996) and Gookin v. State Farm Fire and Cas. Ins. Co., 826 P.2d 229, 232 (Wyo.1992)). Furthermore, the question of subject matter jurisdiction is fundamental in this case because the issues presented by the appellants pre-suppose that the district court lacked subject matter jurisdiction.

      . The cross-appeal of appellee, Supreme Court Case No. 01-174, has been dismissed.

      . We have recently recognized specific legislative intent when the word "maintain" rather than the word "begin" or the word "commence" is used in a statute of limitations or condition precedent to suit. See Rodriguez v. Casey, 2002 WY 111, 50 P.3d 323 (Wyo.2002). In the present context, "maintain" means that the suit may be filed, but it may not be continued toward judgment until the attorney general and the director have been served. The ambiguity results from the statute's lack of any guidance as to when that must be accomplished.

      . Boyd, 909 P.2d 323 is not overruled because that holding was based upon a record that failed to show that the attorney general or the director had ever been served with a copy of the complaint. *


author: VOIGT, Justice.

text:
    2002 WY 111
    Joseph A. RODRIGUEZ, Personal Representative of the Estate of Loren Linton, Deceased, Appellant (Plaintiff), v. June C. CASEY, Personal Representative of the Estate of Robert C. Wilkoske, Deceased, Appellee (Defendant).
    No. 01-195.
    Supreme Court of Wyoming.
    July 18, 2002.

      David G. Lewis, Jackson, Wyoming; and David Broiles, Fort Worth, TX, Representing Appellant.
    J. Kent Rutledge and Becket B. Hinckley of Lathrop & Rutledge, P.C., Cheyenne, WY, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   VOIGT, Justice.

[¶ 1] This is an appeal from a judgment on the pleadings granted to the Wilkoske Estate in a wrongful death action. The district court held that the complaint was premature and ineffective because it was filed before the related claim was rejected by the personal representative of the Wilkoske Estate, and that, when the two-year condition precedent of the wrongful death statute expired prior to such rejection, so, too, did the cause of action.

[¶ 2] We reverse.

ISSUE

[¶ 3] The Linton Estate phrases the issue as follows:

Can a wrongful death claimant against a tortfeasor-decedent's estate file suit on the day the condition precedent terminates, even though the personal representative has yet not rejected his claim.

The Wilkoske Estate rephrases the issue as follows:

Where a wrongful death suit against an estate is filed before the required creditor's claim is rejected, is the suit timely under the wrongful death statu[tle if the creditor's claim is not rejected until after the two-year wrongful death condition precedent has expired?

For simplicity's sake, we state the issue as follows:

What does the word "maintain" mean in Wyo. Stat. Ann. § 27-717 (LexisNexis 2001)?

STANDARD OF REVIEW

[¶ 4] W.R.C.P. 12(c) provides, in part, for motions for judgment on the pleadings:

Motion for judgment on the pleadings.After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.

We have a well-established standard for application of this rule:

A defendant is entitled to judgment on the pleadings if the undisputed facts appearing in the pleadings, supplemented by any facts of which the district court may take judicial notice, establish that no relief can be granted.... A judgment on the pleadings is appropriate if all material allegations of fact are admitted in the pleadings and only questions of law remain.

Greeves v. Rosenbaum, 965 P.2d 669, 671 (Wyo.1998) (citing Johnson v. Griffin, 922 P.2d 860, 861-62 (Wyo.), cert. denied, 519 U.S. 971, 117 S.Ct. 402, 186 L.Ed.2d 316 (1996)). Our review is akin to consideration of a motion to dismiss under W.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Greeves, 965 P.2d at 672. We consider the allegations of the complaint to be true, and view them in the light most favorable to the plaintiff. Id. We have previously held that W.R.C.P. 12(c) is available when an entire controversy may be disposed of because a statute of limitations provides an effective bar to recovery, and we see no reason why the same remedy should not be available when the issue is the condition precedent of the wrongful death statute. Johnson, 922 P.2d at 862.

FACTS

[¶ 5] On October 25, 1998, Loren Linton was driving a truck belonging to Sunrise Express on Interstate 80 near Laramie. Linton was killed when his truck collided with a tow truck being driven by Robert Wilkoske. Wilkoske died several months later of causes unrelated to the accident.

[¶ 6] On October 20, 2000, acting as an estate creditor, Sunrise Express filed a petition to open the Wilkoske Estate. On October 23, 2000, the Linton Estate was also established. On the same date, the Linton Estate filed a creditor's claim in the Wil-koske Estate, based on the alleged wrongful death of Linton. The following day, the Linton Estate filed a wrongful death complaint against the Wilkoske Estate. The Linton Estate's probate claim was not rejected by the personal representative of the Wilkoske Estate until January 26, 2001. The same attorney created both estates, got both personal representatives appointed, and filed the creditor's claim, the claim rejection, and the wrongful death complaint.

STATUTES

[¶ 7] The present appeal arises within the above-mentioned wrongful death action. At issue is the interplay between two separate statutory time limitations-one in the wrongful death statutes and one in the probate code. The substantive cause of action for wrongful death is created by Wyo. Stat. Ann. § 1-88-101 (LexisNexis 2001):

Whenever the death of a person is caused by wrongful act, neglect or default such as would have entitled the party injured to maintain an action to recover damages if death had not ensued, the person who would have been liable if death had not ensued is liable in an action for damages, even though the death was caused under cireumstances as amount in law to murder in the first or second degree or manslaughter. If the person liable dies, the action may be brought against the executor or administrator of his estate. If he left no estate within the state of Wyoming, the court may appoint an administrator upon application.

Wyo. Stat. Ann. § 1-88-102(d) (LexisNexis 2001) contains the time limitation that is pertinent to the present controversy:

Every such action shall be commenced within two (2) years after the death of the deceased person.

[T8] The import of this time constraint in the matter at hand lies in its application by the district court because of the way the district court construed certain time limitations in the probate code. Wyo. Stat. Ann. § 2-7-1708(a) (LexisNexis 2001) requires claims against an estate to be filed with the court clerk within three months after the date of first publication of a notice to eredi-tors. Wyo. Stat. Ann. § 2-7-712(a) (Lexis-Nexis 2001) then provides that the personal representative is to allow or reject the claim within thirty days after expiration of the time for filing claims. The probate code time requirement bearing most directly on the instant case is found in Wyo. Stat. Ann. § 2-T-717 (LexisNexis 2001):

No holder of any claim against an estate shall maintain any action thereon unless the claim is first rejected in whole or in part by the personal representative and the rejection filed with the clerk....

(Emphasis added.) Finally, Wyo. Stat. Ann. § 2-7-718 (LexisNexis 2001) provides as follows:

When a claim is rejected and notice given as required, the holder shall bring suit in the proper court against the personal representative within thirty (80) days after the date of mailing the notice, otherwise the claim is forever barred.

(Emphasis added.)

STATUTORY CONSTRUCTION

[19] The issue before this Court is purely a question of statutory construction. Our standards for that process have often been repeated:

This court interprets statutes by giving effect to the legislature's intent.... We begin by making an inquiry relating to the ordinary and obvious meaning of the words employed according to their arrangement and connection. ... We give effect to every word, clause, and sentence and construe together all components of a statute in pari materia. . Statutory interpretation is a question of law.... We review questions of law de novo without affording deference to the district court's decision.

Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, 52 (Wyo.2001). If a statute is clear and unambiguous, we simply give effect to its plain meaning. Wesaw v. Quality Maintenance, 2001 WY 17, ¶ 83, 19 P.3d 500, 506 (Wyo.2001) (quoting In re Claim of Prasad, 11 P.3d 344, 347 (Wyo.2000)). Only when we find a statute to be ambiguous do we resort to the general principles of statutory construction. Wesaw, 2001 WY 17, ¶ 13, 19 P.3d at 506 (quoting In re Claim of Prasad, 11 P.3d at 347). An ambiguous statute is one whose meaning is uncertain because it is susceptible to more than one interpretation. Pierson v. State, 956 P.2d 1119, 1125 (Wyo.1998) (quoting Amrein v. State, 836 P.2d 862, 864-65 (Wyo.1992)).

It is a basic rule of statutory construction that courts may try to determine legislative intent by considering the type of statute being interpreted and what the legislature intended by the language used, viewed in light of the objects and purposes to be accomplished.... Furthermore, when we are confronted with two possible but conflicting conclusions, we will choose the one most logically designed to cure the mischief or inequity that the legislature was attempting to accomplish.

In re Collicott, 2001 WY 35, ¶ 9, 20 P.3d 1077, 1080 (Wyo.2001). We presume that statutes are enacted by the legislature with full knowledge of existing law, so we construe statutes in harmony with existing law, particularly other statutes relating to the same subject or having the same purpose. In re Estate of Fosler, 13 P.3d 686, 688-89 (Wyo.2000) (quoting Matter of Voss' Adoption, 550 P.2d 481, 486 (Wyo.1976)).

[T10] Statutes must be construed so that no portion is rendered meaningless. Mazurek v. State, 10 P.3d 531, 541 (Wyo.2000). Interpretation should not produce an absurd result. Id. We are guided by the full text of the statute, paying attention to its internal structure and the functional relation between the parts and the whole. In re Worker's Compensation Claim of Johnson, 2001 WY 48, ¶ 8, 23 P.3d 32, 35 (Wyo.2001) (quoting In re Hernandez, 8 P.3d 318, 821 (Wyo.2000) and Parker Land and Cattle Co. v. Wyoming Game and Fish Com'n, 845 P2d 1040, 1045 (Wyo.1993)). Each word of a statute is to be afforded meaning, with none rendered superfluous. Jessen v. Burry, 18 P.3d 1118, 1120 (Wyo.2000). Further, the meaning afforded to a word should be that word's standard popular meaning unless another meaning is clearly intended. Soles v. State, 809 P.2d 772, 773 (Wyo.1991). If the meaning of a word is unclear, it should be afforded the meaning that best accomplishes the statute's purpose. Radalj v. Union Savings & Loan Ass'n, 59 Wyo. 140, 138 P.2d 984, 996 (1943). We presume that the legislature acts intentionally when it uses particular language in one statute, but not in another. Im re Savage, 218 B.R. 126, 132 (10th Cir.BAP1998) (quoting BFP v. Resolution Trust Corp., 511 U.S. 531, 114 S.Ct. 1757, 128 LEd.2d 556 (1994) and City of Chicago v. Environmental Defense Fund, 511 U.S. 828, 388, 114 S.Ct. 1588, 1593, 128 L.Ed.2d 302 (1994)); see also Matter of Voss' Adoption, 550 P.2d at 485. If two sections of legislation appear to conflict, they should be given a reading that gives them both effect. Flores v. Flores, 979 P.2d 944, 947 (Wyo.1999).

DISCUSSION

[¶ 11] It may be instructive here clearly to state the problem presented in this case. The wrongful death statute contains a two-year limitation for the commencement of an action. We have previously described this requirement as a condition precedent rather than a statute of limitations, and we have held that it may not be tolled or extended. Corkill v. Knowles, 955 P.2d 488, 442 (Wyo. 1998). Standing alone, this condition precedent serves as no roadblock to the Linton Estate in the present case; the wrongful death action was filed before the two-year period expired. The argument presented by the Wilkoske Estate, however, is that the otherwise timely filed complaint was a nullity because it was filed before the probate claim was rejected. As a result of this argument, the focus of this controversy is on the probate code.

[¶ 12] A brief detour is in order. Wyo. Stat. Ann. § 1-4-101 (LexisNexis 2001) de-seribes what is known as a "survival" action:

In addition to the causes of action which survive at common law, causes of action for mesne profits, injuries to the person, an injury to real or personal estate, or any deceit or fraud also survive. An action may be brought notwithstanding the death of the person entitled or liable to the same, but in actions for personal injury damages, if the person entitled thereto dies, recovery is limited to damages for wrongful death.

[¶ 13] We said in DeHerrera v. Herrera, 565 P.2d 479, 482 (Wyo.1977):

[The prime difference between survival and wrongful death statutes is that the survival statute merely continues a cause of action in existence. The injured party's claim after death is an asset of the estate while the wrongful death statute creates a new cause of action for the benefit of designated persons who have suffered the loss of a loved one and provider.

This distinction between survival actions and wrongful death actions is important in the context of the present case because Wyo. Stat. Ann. § 2-7-1706 (LexisNexis 2001) clearly tolls the running of the applicable statute of limitations until after a claim based on a survival action has been rejected, but does not do the same for a wrongful death action. Instead, wrongful death actions are subject to the time limitations set forth in Wyo. Stat. Ann. §§ 27-717 and 2-7-718.

Where a cause of action against the decedent survives his death under W.S. 1-4-101 and 1-4-102, before an action may be brought thereon in any court, a claim based thereon shall be filed and shall have been rejected by the personal representative. The running of the applicable statute of limitations on the cause of action shall be tolled from the time the claim is filed until five (5) days after the date of mailing of notice of rejection by the personal representative.

[¶ 14] In granting the Wilkoske Estate's motion for judgment on the pleadings, the district court emphasized Wyo. Stat. Ann. § 2-7-717, the pertinent language from which we will repeat:

No holder of any claim against an estate shall maintain any action thereon unless the claim is first rejected in whole or in part by the personal representative and the rejection filed with the clerk....

Further, the district court relied on Matter of Estate of Campbell, 950 P.2d 557, 560 (Wyo.1997) for the proposition that, "[wlith respect to claims against an estate, there is no access to the courts, and thus no affirmative relief is sought, until the claim has been denied by the personal representative."

[¶ 15) While we understand the district court's reliance on the above-quoted statement from Matter of Estate of Campbell, we find that it is appropriate now to revisit Matter of Estate of Campbell, as well as a few other cases, in order to reach a holding specific to Wyo. Stat. Ann. § 2-7-7117. That is because we have never previously addressed the import of the legislature's use in that statute of the particular word "maintain," as opposed to some other word.

[¶ 16] Matter of Estate of Campbell involved two certified questions: whether Medicaid reimbursement claims of the State Department of Health are subject to the time limitations for filing creditor's claims under Wyo. Stat. Ann. § 2-7-708(a), and whether such claims qualify as future claims under Wyo. Stat. Ann. § 2-7-705(a) (LexisNexis 2001). Matter of Estate of Campbell, 950 P.2d at 558-59. The language from Matter of Estate of Campbell quoted above and in the district court's decision letter, when read in context, is not a declaration or holding that no lawsuit can be filed until the claim has been denied. Rather, it is an explanation of why the claim filing deadline in Wyo. Stat. Ann. § 2-7-703(a) is not a statute of limitations, while the deadline in Wyo. Stat. Ann. § 2-7-718 is a statute of limitations.

[¶ 17] We are further convinced that Matter of Estate of Campbell does not answer the question now before this Court when we look to Taylor v. Estate of Taylor, 719 P.2d 234 (Wyo.1986), which is cited in Matter of Estate of Campbell as the source of the "no access to the courts" statement. Matter of Estate of Campbell, 950 P.2d at 560. While Wyo. Stat. Ann. § 2-7-717 is quoted in Taylor, it is not interpreted. Taylor does not go beyond noting that the statute prohibits "maintaining" an action until the underlying claim has been denied; it does not say what "maintain" or "maintaining" means. Taylor, 719 P.2d at 2838.

[¶ 18] Matter of Estate of Campbell is cited in another case for the proposition that no suit may be filed until the underlying claim has been rejected by the personal representative. See Harris v. Taylor, 969 P.2d 142, 145 (Wyo.1998). In Harris, 969 P.2d at 148, the personal representative of the estate did not serve a known creditor with the notice required by Wyo. Stat. Ann. § 2-7-205(a) (LexisNexis 2001). In reversing a summary judgment in favor of the estate, and in holding that the statute of limitations found in Wyo. Stat, Ann. § 2-7-718 is not triggered unless the personal representative has strictly complied with the probate code's notice requirements, we did, indeed, cite Matter of Estate of Campbell as noted above. Onee again, however, not only is the meaning of Wyo. Stat. Ann. § 2-7-717 not directly addressed in Harris, the statute is not even mentioned. Instead, Harris focuses on the requirement in Wyo. Stat. Ann. § 2-7-718 that a suit must be filed, if at all, within thirty days after rejection of the claim. Harris, 969 P.2d at 145.

[¶19] At first glance, the somewhat similar case of Scott v. Scott, 918 P.2d 198 (Wyo.1996), might seem to provide guidance in resolving the present issue. Indeed, Scoff was cited in Harris along with Matter of Estate of Campbell But Scott, like Matter of Estate of Campbell, is not based on Wyo. Stat. Ann. § 27-717 and adds nothing to the interpretation of that statute. Scoft involved a survival action; its conclusion, based on Wyo. Stat. Ann. §§ 2-7-708 and 27-706, is that failure to file a claim against the estate bars the claimant from bringing an action against the estate. Scoff, 918 P.2d at 201. That, of course, is not the issue with which we are currently concerned.

[¶ 20] None of these cases speak directly to the question of what the legislature intended by use of the word "maintain" in Wyo. Stat. Ann. § 2-7-717. Keeping in mind the rules of statutory construction detailed above, our job is to give effect to the most likely, most reasonable, interpretation of the statute, given its design and purpose. First, we must decide whether the statute is ambiguous. Standing alone, perhaps it is not. But use of the word "maintain" in Wyo. Stat. Ann. § 27-717, followed so closely by use of the word "bring" in Wyo. Stat. Ann. § 2-7-718, does create ambiguity. The question is whether "maintain" means "bring suit" or means "continue a suit already brought."

[¶ 21] The two words do not have the same dictionary meaning. In relevant context, "bring" means "to cause to exist or oceur," while "maintain" means "to keep in an existing state ... to continue or persevere in...." Merriam-Webster's Collegiate Dictionary 148, 702 (10th ed.1999). Black's Law Dictionary 192, 958 (6th ed.1990) contains the following definitions:

To "bring" an action or suit has a settled customary meaning at law, and refers to the initiation of legal proceedings in a suit.... A suit is "brought" at the time it is commenced.... "Brought" and "commenced" in statutes of limitations are commonly deemed to be synonymous. Under the Federal Rules of Civil Procedure, and also most state courts, a civil action is commenced by filing a complaint with the court.
To "maintain" an action is to uphold, continue on foot, and keep from collapse a suit already begun, or to prosecute a suit with effect.... To maintain an action or suit may mean to commence or institute it; the term imports the existence of a cause of action. Maintain, however, is usually applied to actions already brought, but not yet reduced to judgment.... In this connection, it means to continue or preserve [sic] in or with; to carry on.

[¶ 22] From these sources, we can conclude that both the common and the legal definition of maintain is "to continue with something already in existence." In the present context, that suggests that, under Wyo. Stat. Ann. § 2-7-717, a wrongful death action may be filed, but it may not be pursued to judgment until the claim bas been filed and rejected by the personal representative. What supports that interpretation of the statute? To begin with, we must remember that the legislature chose the specific word "maintain" and we must presume it did so purposely. The legislature could have used the word "bring" or the word "brought" or the word "commence," as it did in Wyo. Stat. Ann. §§ 2-7-1706 and 2-7-718 and in over a dozen statutes of limitation. Beyond that, it is reasonable to conclude that the legislature recognized the very difficulty, as exemplified by the present case, that results from the fact that the time limitation in the wrongful death statute is a condition precedent, rather than a statute of limitations, and cannot be tolled.

[¶ 23] A comparison of examples may be instructive. If A suffers personal injuries at the hands of B, A has four years to bring an action against B. Wyo. Stat. Ann. $ 1-8-105(a)iv)(C) (LexisNexis 2001). If B dies, A's cause of action survives. Wyo. Stat. Ann. §§ 1-4-101 and 1-4-102 (LexisNexis 2001). The action is filed as a claim against B's estate and the personal representative is substituted for B as the defendant. Wyo. Stat. Ann. § 2-7-1709 (LexisNexis 2001). Where the suit is not filed before B's death, A must first file a claim against the estate and wait for that claim to be rejected, but during the interim, the statute of limitations is tolled until five days after notice of rejection is mailed. Wyo. Stat. Ann. §§ 2-7-708 and 2-7-706. Consequently, A's cause of action is not at risk if the personal representative does not reject the claim before the four-year period expires.

[¶ 24] The situation is different, however, if A dies from the personal injuries inflicted by B. A's estate has two years to bring a wrongful death action against B. Wyo. Stat. Ann. § 1-88-102(d). If A's estate sues B for wrongful death, and B later dies, the cause of action survives. Wyo. Stat. Ann. § 1-88-101. Just as with a personal injury action, the personal representative is substituted for B in the wrongful death action. Wyo. Stat. Ann. § 2-7-1709. Although Wyo. Stat. Ann. § 2-T-706 does not apply to toll the two-year condition precedent, the suit has already been "brought." Under Wyo. Stat. Ann. § 2-7-7174, it just cannot be "maintained" until a claim is filed in the estate and is rejected by the personal representative. And when this seenario is varied slightly so that it resembles the case now before this Court, there is no reason to think that the legislature would have intended to distinguish between a wrongful death claimant who files his lawsuit before the alleged tort-feasor dies from one who files his lawsuit after the alleged tortfeasor dies. In either case, the suit may not be maintained-eontin-ued toward judgment-until the probate claim is filed and rejected.

[¶ 25] While the legislature's use of "maintain" in Wyo. Stat. Ann. § 2-7-717 and use of "bring" in the very next section may have created an ambiguity, we do not conclude that the two sections are necessarily contradictory. Even if we did so conclude, it would be our duty to read them so as to give them both effect. Flores, 979 P.2d at 947. What Wyo. Stat. Ann. § 2-7-718 adds to the statutory scheme is finality for purposes of estate administration. Wyo. Stat. Ann. § 2-7-718 is not limited to any particular claim or cause of action. What it says is that, for any rejected claim, the holder must bring suit, if at all, within thirty days after the rejection notice is mailed. Wyo. Stat. Ann. § 2-7-718 is a "super" statute of limitations-it gives the personal representative what is, in effect, a trump card. Regardless of the status of any external statute of limitations or condition precedent, suit on a claim is barred if it has not been brought within that thirty days.

,CONCLUSION

[¶ 26] We pointed out above that this statutory scheme is ambiguous. Our goal here has been " 'to adopt that sense of the words which best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature." " Zmijewski v. Wright, 809 P.2d 280, 283 (Wyo.1991) (quoting United States v. Hartwell, 6 Wall. 385, 73 U.S. 385, 396, 18 L.Ed. 830 (1867)). In that regard, we have previously held that

[tlhe object of limitation statutes in estate matters is to expedite and facilitate the settlement of estates by providing a procedure whereby the executor or administrator of an estate can wind up the affairs of a decedent in an orderly manner and make distribution of assets as speedily as practicable.... The purpose, however, is to bar belated creditors and not to furnish a vehicle by which executors or administrators may refuse to apply the assets of an estate to the payment of debts.

Park County ex rel. Park County Welfare Dept. v. Blackburn, 394 P.2d 793, 795 (Wyo.1964). See also Zmijewski, 809 P.2d at 283. This balance between the rights of claimants and the need for finality in estate administration is reflected further in Wyo. Stat. Aun. § 2-7-716 (LexisNexis 2001), which states, in part:

Pending final adjudication of all claims and litigation as to which claims have been timely filed, the personal representative shall proceed with the administration of the estate to the extent possible without prejudicing the possible rights of creditors, but the estate shall not be closed and no payment of claims or distributions to dis-tributees shall be made which would impair the ability of the estate to honor the claims as finally adjudicated, in accordance with their priority.

[¶ 27] Inasmuch as the condition precedent of the wrongful death statute is not a statute of limitations and may not be tolled, it makes sense that the legislature would use the word "maintain" rather than the word "bring" in Wyo. Stat. Ann. § 2-7-717 to allow for the situation where the two-year period will expire before the period for rejection of claims expires. For this Court to rule that "maintain" means "bring" would upset the balance between claimant and estate that is clearly a primary legislative purpose in Article 7 of the Probate Code.

[¶ 28] We hold that Wyo. Stat. Ann. § 2-7-717 allows the holder of a wrongful death claim, under the cireumstances of this case, to bring his or her civil action and serve the personal representative before the claim has been filed and rejected in the probate estate.

[¶ 29] We reverse the district court and remand for further proceedings.

      . Wyo. Stat. Ann. § 2-7-706 states, in part:

      . The explanation being that the filing of a claim does not directly seek affirmative relief from the court, as does the filing of a complaint.

      . Wyo. Stat. Ann. § 2-7-205(a) states, in part: A true copy of the notice required in W.S. 2-7-201 shall be mailed by ordinary United States mail, first class, to:

      (i) Each creditor of the decedent whose identity is reasonably ascertainable by the per-. sonal representative within the time limited in the notice to creditors.

      . See Wyo. Stat. Ann. §§ 1-3-102, 1-3-103, 1-3-104, 1-3-105, 1-3-107, 1-3-108, 1-3-109, 1-3-111, 1-3-113, 1-3-114, 1-3-115, 1-3-116, and 1-3-118 (LexisNexis 2001).


author: CARPENETI, Justice.

text:
    J.S., Appellant, v. STATE of Alaska, Appellee.
    No. S-9722.
    Supreme Court of Alaska.
    June 21, 2002.

      J.S., pro se, Anchorage, and Gayle J. Brown, Anchorage, for Appellant.
    Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Alan L. Schmitt, Kodiak, Guardian Ad Li-tem.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Jack's parental rights were terminated as to his sons Avery, Lyle, and Carl after Jack was convicted of five counts of sexual abuse against them. Jack claims several errors were made by the superior court. Because we find that the superior court did not need to require active efforts under the Indian Child Welfare Act, we uphold the termination of Jack's parental rights.

II. FACTS AND PROCEEDINGS

A. Facts

This case involves the termination of Jack's parental rights to his three sons: Avery, Lyle, and Carl. Avery was born in June 1988. Lyle and Carl, twins, were born in June 1989. Custody of the boys appears to have been transferred to Jack on September 7, 1989 after the state petitioned to have the boys removed from their mother's custody when the twins tested positive for cocaine at birth. During the first several years of the twins' life, custody apparently went back and forth between the mother and Jack. Between January 1, 1994 and January 25, 1996, the boys lived with Jack in Kodiak.

The Division of Family and Youth Services (DFYS) removed the boys from Jack's care on January 25, 1996 due to reports to the Kodiak police department and DFYS case worker, Mary Gray, by the boys' mother and other relatives, that Jack was sexually abusing all three boys. Jack was charged with eight counts of engaging in acts of sexual contact and sexual penetration including fellatio, digital anal penetration, and penile anal penetration. A jury convicted Jack of four counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor, counts which involved all three boys. Jack was sentenced to nineteen years with four years suspended. Also, as conditions of parole, Jack was ordered not to have contact, direct or indirect, with his sons or his own sisters, or their families, without prior written approval of the parole officer. Jack was also ordered not to have contact with any minor children under the age of sixteen without the approval of the parole officer. The court of appeals upheld Jack's conviction in its entirety.

After their removal from Jack's custody, the boys were placed in emergency custody. DFYS attempted to place the boys with their mother after her promise to remain clean and sober. The mother moved with the boys into a local women's shelter but abandoned them sometime during the night of February 4, 1996. After their mother's abandonment, the boys were placed in foster care and then placed with their aunt Cara on March 22, 1996. The boys remained with Cara until she informed DFYS that they had to be moved due to their inappropriate sexual behavior with each other and her own children. The boys have since been placed in separate foster homes. The mother's parental rights were terminated on August 24, 1999.

B. Proceedings

The state petitioned to have the boys declared children in need of aid on January 26, 1996. The superior court delayed the proceedings on several occasions pending resolution of Jack's criminal charges. The boys were adjudged children in need of aid under AS 47.10.010(4) by the superior court on January 7, 1997. Also on that date the superior court granted the state's motion for summary judgment, holding that Jack was collaterally estopped from denying that he sexually abused his children in light of his criminal conviction. In January 1999 DFYS petitioned for termination of Jack's parental rights as to all three boys. Jack moved to have the boys declared Indian children for the purposes of the Indian Child Welfare Act (ICWA). Preliminary hearings were held in front of Superior Court Judge Donald D. Hopwood on January 26, 1996 and Standing Master Anna M. Moran on February 2, February 17, May 4, and May 20, 1999. The termination proceeding was held May 25-27, 1999 before Standing Master Moran.

The Muscogee (Creek) Nation moved to intervene in the proceedings under ICWA and that motion was granted by Standing Master Moran. In accordance with Standing Master Moran's findings, the superior court found, beyond a reasonable doubt, that termination of Jack's parental rights was appropriate under AS 47.10.080(0) given the length of his incarceration and the needs of the children. These findings were based on the testimony of six expert witnesses and a social worker.

However, the superior court found that it was uncontroverted that the state failed to offer any type of active remedial or rehabilitative services to Jack as required by ICWA. The superior court found that for rehabilitation to occur, Jack would have to admit that he sexually abused his children and enroll in a sex offender treatment program. The superior court held the record open for sixty days in order to allow the state to develop and offer a treatment plan to Jack; and ruled that if Jack failed to accept the plan during this time his parental rights would be terminated.

The state developed a case plan that included the requirement that Jack admit to charges I through VIII of his March 28, 1996 indictment, openly take full responsibility for his behavior, write a letter of apology to each of his three sons involved in the termination proceedings, direct his attorneys to terminate all appeals of his criminal case, and enroll and be accepted into a sex offender treatment program. Jack rejected the proposed case plan because it required him to admit to the sexual abuse of his sons and because it required him to cease his criminal appeals.

The superior court ordered the matter to be heard by Standing Master Moran for additional findings on the issue of the state's compliance with the August 24, 1999 order. Standing Master Moran found that the state's case plan satisfied ICWA's remedial measures requirement and recommended termination of Jack's parental rights in December 1999. In January 2000 the superior court approved a stipulation between the state and the Muscogee Creek representatives noting that DFYS contacted all of the boys' relatives, that no family members were willing or capable of caring for the boys, and that no families meeting the preference requirements of § 1915(a) of ICWA were found after diligent effort by DFYS. The superior court issued an order in accordance with the findings of Standing Master Moran in May 2000.

Jack now appeals the decision of the superior court terminating his parental rights.

IH. STANDARD OF REVIEW

We will affirm a trial court's factual findings in cases of termination of parental rights "unless those findings are clearly erroneous. A finding of fact is clearly erroneous when we are left with a definite and firm conviction based on the entire record that the trial court has made a mistake. It is a mixed question of law and fact as to whether the state has complied with the "active efforts" requirement of ICWA. We will defer to the trial court's factual findings under the "clearly erroneous" standard and review de move any questions of law. "Whether the factual findings are sufficient to satisfy the [CINA] rules is a question of law" that we will review de novo. Constitutional questions are questions of law for which we will substitute our own judgment. We will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

A. The Superior Court Did Not Err In Terminating Jack's Parental Rights Because Active Efforts Were Not Required under ICWA.

Jack argues that the proposed case plan offered by the state in response to the superior court's August 24, 1999 order did not comply with ICWA's requirement that active efforts be made to rehabilitate a family prior to the termination of parental rights. The state and the guardian ad litem (GAL) argue that the active efforts requirement was complied with. The state and the GAL also argue that ICWA should be interpreted as not requiring active efforts onee a family is irrevocably sundered by parental sexual abuse.

The Indian Child Welfare Act requires the state to prove "active efforts ... to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family." We decide whether active efforts have been made on a case-by-case basis. Generally, the state's duty under the active efforts requirement is not affected by a parent's motivation or prognosis before remedial efforts have commenced. We have previously held that "Injeither incarceration nor doubtful prospects for rehabilitation will relieve the State of its duty under ICWA to make active remedial efforts.

However, the enactment of the Adoption and Safe Families Act of 1997 (ASFA) convinces us that it is the policy of Congress to not require remedial measures in situations where a court has determined that a parent has subjected his or her child to sexual abuse. This enactment amended 42 U.S.C. § 671 so as not to require reasonable efforts to be made to preserve the family when "a court of competent jurisdiction has determined that ... the parent has subjected the child to aggravated circumstances," which includes sexual abuse. Although this case is not governed by ASFA, that act is useful in providing guidance to congressional policy on child welfare issues. It suggests that in situations of adjudicated devastating sexual abuse, such as this one, a person's fundamental right to parent is not more important than a child's fundamental right to safety. Therefore, we hold that active efforts to reunify the abusing parent are not required in a situation after there has been a judicial determination that the parent has subjected the child to sexual abuse.

Because the superior court could find the state's active efforts duty was discharged when Jack was convicted of sexually abusing his children, the superior court did not err in terminating his parental rights.

B. The Superior Court Did Not Err in Qualifying the Expert Witnesses.

Jack argues that the superior court erred when it qualified experts that were without special knowledge of social and cultural aspects of Native life. In L.G. v. State, Department of Health and Social Services, we stated that "so long as a termination proceeding does not implicate cultural bias, ICWA's proof requirements can be satisfied by a qualified expert witness without any special familiarity with Native cultural standards." We went on to state that "where there is clear evidence that a child faces a serious risk of physical neglect if she [or hel remains in [the] parent's care, a trial judge may terminate parental rights without hearing testimony from an expert in Native cultures." Jack has offered no evidence that the issue of cultural bias was raised at trial.

During the course of the termination proceedings, five experts testified as to the risk to the boys if Jack's parental rights were not terminated. The therapists for all three boys (four therapists in total) testified that the boys could not be transitioned back into Jack's custody without substantial emotional harm. In addition, all four therapists testified that the boys would suffer severe emotional distress if they were required to leave the respective foster families to which they had bonded. Therefore, the superior court did not err in terminating Jack's parental rights without hearing testimony from an expert on Native life because cultural issues were not implicated in the proceedings and there was sufficient expert testimony that the boys could suffer severe emotional harm if Jack's parental rights were not terminated.

C. The Superior Court Did Not Lack Jurisdiction.

Jack argues that the superior court lacked jurisdiction because violations of law occurred during the proceedings. ICWA provides for the transfer of termination proceedings to the tribal court to which the children belong in some circumstances. However, Jack does not seem to be arguing here, nor did he argue in the superior court, that jurisdiction be transferred to the Musco-gee tribal court. Instead, he argues that proceedings should be terminated and the boys returned to their "Indian Custodians." Jack's "Motion to Move Superior Court to: Declination of Jurisdiction: and Forthwith Return of Child to Indian Custodian" appears to be a motion to dismiss the proceedings in their entirety. Also pertinent is the fact that the Muscogee Tribe representatives signed a stipulation, that was approved by the superior court, that the tribe was contacted regarding the stability of the current placements and that the tribe is in agreement with the state's handling of the situation, including the boys' placement with nonNative families. There is evidence that the Muscogee Tribe reserved the right to petition that the proceedings be transferred to the tribal court but there is no indication that a petition was ever filed. Also, a petition for removal under U.S.C. § 1911 was never filed. Therefore, the superior court had jurisdiction over these termination proceedings.

D. The Superior Court Did Not Err in Upholding the State's Placement of the Children Outside of ICWA Preferences.

Jack argues that the state failed to follow ICWA's placement requirements because there were family members of Jack who were willing to take the boys but who were never contacted by the state. Jack argues that his brother, Aaron, was willing to take the children, as was Jack's sister, Lilly. Jack also argues that the state failed to inquire about any extended family that may be able to take the boys.

DFYS case worker Mary Gray testified that she contacted the Kodiak Area Native Association in order to find foster placement for the boys on several occasions but that there was never a Native family available. Gray also testified that the boys were placed with their aunt, Cara, but that did not work out. Gray then contacted the boys' other aunt, Lilly, but after some communications between Lilly and DFYS, Lilly decided that she should not take care of the boys. Also, Gray testified that she had a meeting with Jack in the summer of 1998 but that Jack did not offer the names of any relatives who could care for the boys and that she had never heard of Jack's brother, Aaron, until he appeared on the witness list in the proceedings. Furthermore, the Muscogee Tribe representatives signed a stipulation stating that the state worked in conjunction with the tribe to find placement with the boys' family pursuant to ICWA, that placement with relatives or other Native families was not available, and that good cause existed to deviate from ICWA preferences. The state complied with ICWA's preference guidelines. Therefore, the placement of the boys was not in error.

E. The Superior Court Did Not Rule that Jack Was To Have No Direct or Indirect Contact with His Children.

Jack argues that the superior court erred when it found that he was not to have any contact with his children. Jack argues that this finding by the superior court was one of the reasons that his parental rights were erroneously terminated. There is no evidence that the superior court ever ordered Jack to have no contact with his children or based any orders in the termination proceedings on whether or not contact occurred. In fact, Jack's criminal conviction states that he was to have "[nlo contact, direct or indirect, with the victims ... without prior written approval of the Probation/Parole Officer." Therefore, the superior court did not order him to have no contact with his children; this was one of the many conditions of Jack's parole.

F. The Superior Court Did Not Err in Denying Jack's Discovery Motions.

Jack argues that the superior court erred when it denied discovery of notes to an interview that Jack believes occurred between Mary Gray and the boys. Jack claims that he was denied discovery of these notes because Gray and the district attorney denied that this interview ever happened and the superior court agreed with the district attorney and Gray. The superior court granted Jack's discovery motion in part on February 11, 2000, allowing him access to any information that DFYS may have had about communications between DFYS and Lilly, The superior court issued another order on March 8, 2000 denying Jack's discovery request because this discovery request was covered by the court's previous order. In addition, DFYS proved that Jack received discovery of DFYS's entire file in this case. Therefore, the superior court did not deny Jack discovery; there was no error in connection with the superior court's discovery orders.

G. The Superior Court Did Not Err in Finding Beyond a Reasonable Doubt that Placement with Jack Was Likely To Result in Serious Physical or Emotional Damage to the Children.

Jack argues that the evidence presented to the superior court by the state was insufficient to meet the beyond a reasonable doubt standard required by ICWA. Specifically, Jack argues that the expert witnesses did not have sufficient knowledge of the specific facts of this case. We have stated:

We do not hold that a meeting between the expert and the parties to the termination proceeding is required in every case. But the expert opinion should be based on the particular facts and issues of the case ... in order to support a finding, beyond a reasonable doubt, that serious physical or emotional harm will result.

Jack was criminally convicted of sexually abusing the boys. The superior court was therefore justified in finding in the termination proceeding that this fact had been proven beyond a reasonable doubt. We turn now to the specific expert testimony that the state offered, and whether the expert opinions were sufficiently based on the particular facts of this case.

The first expert to testify was Pamela A. Robinson, who has a Bachelor of Science degree in sociology with a minor in psychology and a master's degree in counseling psychology. She testified that prior to getting her master's degree she worked for twenty years in early childhood education and child development, and that she has been qualified as an expert in several other cases. At the time of her testimony, she had been counseling Carl for approximately one and one-half years. Upon the initial consultation, she diagnosed Carl with post-traumatic stress disorder, possible major depression, and adjustment disorder. She stated that she believed that Carl could not be transitioned back to Jack without causing Carl emotional harm.

The second expert to testify was Sandra Husted, who has a bachelor's degree in sociology and a master's degree in counseling. She stated that she was a Clinician II at Providence Mental Health Center in Kodiak from January 1998 until January 1999. At the time of the hearing, she had been licensed as a professional counselor in Texas for nine years. She had been qualified as an expert in psychotherapy and crisis emergency in previous court cases. She testified that she treated Avery from February of 1998 until November of 1998 during which time she saw him approximately every three weeks. She testified that Avery could not be transitioned away from his foster family and back to Jack because of the abuse perpetrated by Jack.

Dr. Robert B. Duthie testified next. He holds a Ph.D. in counseling and clinical psychology and has been board certified in forensic psychology since 1987. He stated that he had been qualified as an expert in at least 100 previous cases. He first met Lyle in June of 1998 and had been following the case ever since. He testified that Lyle had post-traumatic stress disorder arising from the sexual abuse by Jack. He also testified that Lyle could not successfully be placed back into custody with Jack without emotional harm and risk of continued sexual abuse because Jack has not received treatment nor apologized for the previous abuse.

The fourth expert to testify was Dr. Joseph M. Keville, who has a Bachelor of Science degree in social services and a Ph.D. in education; he has been a licensed psychologist in Massachusetts since 1978. He practices in the area of clinical child psychology. He testified that he had treated approximately 1,000 children in the last ten years. He met with Avery on two occasions and testified that he thought that Avery would have a "severe depressive reaction" if he was forced to leave his foster family.

The fifth expert to testify was Dr. Ronald D. Howes, who has a bachelor's degree and master's degree in psychology and a Ph.D. in clinical psychology. He stated that he had completed over 2,000 hours of clinical internship in forensic psychology with the California Department of Corrections and is board certified in trauma psychology with specialties in sex therapy and treatment of sex addictions. He had testified as an expert in court on numerous occasions. He stated that the recidivism rate for a sex offender increased in cases with same gender sexual abuse, lack of a strong family member supervising the family, and where the abuse was not admitted to by the offender. He stated that, given the situation in this case, the rate of recidivism would be over fifty percent.

There was substantial testimony by experts with personal knowledge of the facts of this case and an expert with substantial expertise in sex offender treatment. The superior court's finding beyond a reasonable doubt that placement with Jack would result in serious emotional damage to the boys was therefore not clearly erroneous.

v. CONCLUSION

We AFFIRM the termination of Jack's parental rights.

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

      . A.A. v. State, Dept. of Family & Youth Servs., 982 P.2d 256, 259 (Alaska 1999).

      . Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

      . A.A., 982 P.2d at 259.

      . Id.

      . T.F. v. State, Dep't of Health & Soc. Servs., 26 P.3d 1089, 1092 (Alaska 2001).

      . Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . 25 U.S.C. § 1912(d).

      . N.A. v. State, Div. of Family & Youth Servs., 19 P.3d 597, 603 (Alaska 2001).

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

      . A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled on other grounds, Matter of S.A., 912 P.2d 1235, 1239 (Alaska 1996); see also A.B.M. v. M.H. & A.H., 651 P.2d 1170, 1173 (Alaska 1982) (holding that there was no compelling reason for implying a judicially created exception to ICWA).

      . Pub.L. No. 105-89, 111 Stat. 2115 (1997) (codified as amended in scattered sections of 42 U.S.C.). This provision of the federal act has been adopted in Alaska as AS 47.10.086(c)(1).

      . Id. at§ 101.

      . 42 U.S.C. § 671(a)(15)(D)(i) (2001). We note that the Alaska Legislature has adopted this exception to the reasonable efforts requirement in regard to children in need of aid in AS 47.10.086(c).

      . Jack also argues on appeal that, by requiring him to admit to charges I through VIII of his criminal indictment in order to prevent the termination of his parental rights, the state violated his constitutional right against self-incrimination and that the superior court erred in giving the state time to comply with ICWA. Because we hold that the state was not required to make active efforts, it is unnecessary to reach these two issues.

      . 14 P.3d 946 (Alaska 2000).

      . Id. at 953.

      . Id.

      . 25 U.S.C. § 1911(b) (2000) provides in relevant part:
      (b) Transfer of proceedings; tribal court declination by
      In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

      . AS 47.10.010(a).

      . 25 U.S.C. § 1915(b) (2000) provides:
      (b) Foster care or preadoptive placements; criteria; preferences
      Any child accepted for foster care or pre-adoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with-
      (i) a member of the Indian child's extended family;
      (i) a foster home licensed, approved, or specified by the Indian child's tribe;
      (iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
      (iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.

      . 25 U.S.C. § 1912(f) (2000) provides:
      (f) Parental rights termination orders; dence; determination of damage to child evi-
      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.

      24. C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1218 (Alaska 2001).