author: BRYNER, Justice.

text:
    ERICA A., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF FAMILY AND YOUTH SERVICES, Appellee.
    No. S-10234.
    Supreme Court of Alaska.
    March 21, 2003.

      Richard D. Kibby, Anchorage, for Appellant.
    Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Thom F. Janidlo, Anchorage, Guardian ad Litem.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Erica A. appeals the superior court's order terminating her parental rights to her children Kevin S. and Amy K. The superior court correctly applied the termination statute, AS 47.10.088, to the facts of this case and did not err in any other respect. We therefore affirm the superior court's order.

II. FACTS AND PROCEEDINGS

Erica A. is a thirty-four-year-old mother of five children. Her involvement with the Department of Health and Social Services, Division of Family and Youth Services began in 1989. At the time, Erica had a daughter by her then-husband, Edward, and a son from a previous relationship. Between May and October 1989, the division received four reports of harm alleging that Erica and Edward had neglected the children, that Erica had a substance abuse problem, and that Edward had physically abused the children. Erica admitted that she used cocaine, crystal methamphetamine, acid, and speed while pregnant. The division referred Erica to homemaker services and substance abuse treatment.

By 1990 Erica had a third child, her see-ond by Edward. The division responded to a report of physical abuse, but closed its case on Erica's children after establishing that they were in the custody of Edward's parents. Later that year, the division learned that Erica had taken the children out of Alaska.

Erica again came to the division's attention in 1992. That year, the division took emer-geney custody of all three children after a doctor's examination substantiated reports of sexual abuse. The division never identified the perpetrator with certainty, but it instructed Erica to prevent contact between her children and her teenage half brother. Despite this instruction, the division received a report that Erica and her mother had left her children in her half brother's care while they went to church. The division paid for a psychological evaluation of Erica's half brother, which recommended that he not be left unsupervised with children. Erica additionally failed to protect her older children from a boyfriend, Brian S., who would become the father of Kevin and Amy. The division told Erica to keep Brian away from her children after it received a report that he had physically abused the oldest child and held an unloaded gun to the head of Erica's young cousin. Erica nevertheless continued to allow Brian into her home.

The division developed case plans for Erica in 1992-98 and provided services including psychological evaluations, home-based services to improve parenting and everyday living skills, a substance abuse evaluation, therapy sessions for Erica and her children, and parenting classes. When Erica became involved in a legal dispute with Edward and his parents over custody of the three oldest children, the division referred her to an attorney. The superior court granted custody of Edward's children to him, and granted custody of Erica's oldest child to Edward's parents, even though they are not biologically related to the child. All of them later left Alaska, and Erica has had no contact with them for several years.

In 1998 Erica gave birth to Kevin, a child fathered by Brian. The division took legal custody of Kevin soon after he was born, citing Erica's lack of progress on her earlier case plans and her ongoing substance abuse. Erica admitted that she used marijuana and alcohol during the pregnancy. Brian was incarcerated when Kevin was born. The division filed a petition for Kevin's adjudication as a child in need of aid. Erica stipulated to his status as a child in need of aid. In the three months after Kevin was born, the division provided sixty-three hours of direct services to Erica, including assistance locating housing and family support classes.

By July 1994 Erica, Brian, and Kevin were living together in Wasilla. In a disposition order entered in July 1994, the superior court continued the state's legal custody of Kevin but allowed Erica and Brian to retain physical custody. The division referred Erica and Brian to parenting classes and counseling to address the effects of sexual abuse that each parent had suffered in childhood.

In April 1995 the division determined that Kevin was not at risk in his parents' custody and closed its case on Kevin, although Keyv-in's guardian ad litem expressed reservations about the parents' failure to comply with their case plan. A month later, Erica and Kevin-apparently no longer living with Brian-were evicted from their home in a trailer park. Their trailer caught fire as they were moving out. Erica was charged with arson and pleaded no contest to criminal mischief, for which she received a suspended sentence and three years' probation.

That summer Erica tried to break into Brian's trailer and ended up in a fight with Brian and his new girifriend. The police found Erica and Kevin in a van outside the trailer; Erica had been cut during the fight, and both she and Kevin were smeared with her blood. Kevin was dressed only in an adult t-shirt. Erica was charged with one count of child abuse, one count of assault, and one count of unauthorized entry. She eventually pleaded no contest to disorderly conduct.

Erica and Kevin moved in with Erica's aunt, whose parental rights to her own children had been terminated and who had sexually abused Erica during childhood. On one occasion when Erica left Kevin at home, her aunt physically abused him by hitting him and throwing him across the room. A social worker responding to a report of harm about the incident discovered that Kevin had bruises and blood blisters. The division again took custody of Kevin in September 1995 and filed a petition for his adjudication as a child in need of aid based on this physical abuse and on Erica's fight at Brian's trailer. Kevin was placed in foster care.

The following month, October 1995, Erica was sentenced on her disorderly conduct conviction. The district court imposed a ninety-day suspended sentence with three years of probation and required her to participate in parenting classes, alcohol abuse treatment, and a domestic violence intervention program. The division worked with the alcohol abuse program to refer Erica to the Reflections residential substance abuse treatment program. The division returned Kevin to Erica's physical custody after her admission to the program, but retained legal custody. It moved Kevin back to foster care after program staff and participants observed Erica failing to bathe Kevin, leaving him alone or with strangers while she went to smoke a cigarette, and hitting him. After Kevin returned to foster care, his foster mother reported that he had tried to touch her vaginal area and had attempted to injure himself and the family dog.

Erica was discharged from Reflections early in February 1996 for failing to follow rules and complete assigned tasks. The Reflee-tions staff recommended that she continue with residential substance abuse treatment; although Akeela House had space available for Erica, she declined to continue treatment. The superior court adjudicated Kevin to be a child in need of aid in August 1996; in December 1996 it issued a disposition order placing him in state custody for two years.

Upon receiving formal legal custody of Kevin, the division placed him in Erica's physical custody, and the two lived with Erica's mother. The division provided counseling, home-based therapy, bus passes, and assistance in keeping track of Erica's appointments. In March 1997 Erica purchased a trailer and moved into it with Kevin. The division provided a substance abuse assessment, which concluded that Erica did not need additional treatment. The division therefore requested, and the superior court approved, Kevin's release into Erica's legal custody in June 1997.

Three months later, in September 1997, the division received an anonymous report about Erica's care of Kevin. The reporter alleged that Erica's trailer was filthy, that she allowed runaway teenagers into her home and used crack cocaine with them in front of Kevin, and that Kevin displayed highly sexualized behavior. The division did not investigate that report. But in December 1997 Erica was arrested for maintaining a crack house after she allowed a drug dealer to live in the home with her and Kevin. Police found a crack pipe in her hand, and she admitted to smoking crack that morning. Erica was pregnant with Amy at the time. Erica was charged with misconduct involving a controlled substance and was incarcerated pending disposition of her charge.

After her arrest, Erica arranged for Kevin to live with her brother in Palmer. Upon investigation, the division determined that Kevin was not at risk in Erica's brother's home and did not take custody of him.

In January 1998 the Department of Corrections placed Erica in the Dena A. Coy program, which provides residential substance abuse treatment for expectant mothers. Amy was born in February 1998, two months premature. At the time, Erica was unable to identify Amy's father. (A paternity test later established that Brian was the father.) Because of her premature birth, Amy suffered serious health problems, which made it difficult for Erica to participate in substance abuse treatment; as a result, she was discharged early from Dena A. Coy.

Between May and June, Erica was released from jail to her parents' third-party custody. After her release, the division provided bus passes, taxi vouchers, counseling, a psychological evaluation, and assistance in organizing her appointments. By June 1998 the division had helped Erica enroll in the New Dawn long-term after care program. At New Dawn, Erica was disciplined for nursing the infant Amy in the rain while Erica smoked a cigarette.

Erica eventually pleaded no contest to misconduct involving a controlled substance. In August 1998 the superior court sentenced her to twenty-one months in jail. She then entered the Hiland Mountain Correctional Center to serve her sentence.

Meanwhile, in March 1998, the division had filed a petition to adjudicate Amy a child in need of aid based on Erica's history of substance abuse. In July the superior court had found Amy to be a child in need of aid and had committed her to the state's temporary custody pending disposition. But the division allowed Amy to remain in Erica's physical custody until Erica returned to jail in August 1998. The division then allowed Erica to place Amy with a family friend, Connie H. The division provided services to address Amy's physical and cognitive developmental delays.

In January 1999 the superior court held a disposition hearing and committed Amy to state custody for two years. At that time the division planned to pursue guardianship of Amy by Connie. But Connie soon decided that she could no longer care for Amy and returned her to Erica's mother. The division agreed to the placement and filed a permanency report with the superior court in August 1999, recommending termination of Erica's parental rights and adoption by Erica's mother. Erica's social worker testified at the termination trial that he instructed Erica's mother not to allow unsupervised visits between Erica and Amy, though Erica's mother maintained that she was never informed of the restriction. The social worker also testified that Erica's mother disagreed with the division's assessment that Erica had serious deficiencies as a parent, but agreed to comply with any conditions that would allow Erica's mother to have permanent custody of Amy.

The Department of Corrections released Erica from custody in July 1999. She remained on probation for her eriminal mischief conviction. The state did not then have custody of Kevin, believing that he was living with Erica's father. But in October 1999 the division received a report of harm regarding Kevin and at least one other child at Erica's trailer. The report alleged that Erica had smoked crack in front of six-year-old Kevin, that Kevin played outdoors without shoes, that he played with fire and a BB gun, and that Erica left unspecified children unattended while she slept. When a social worker arrived at Erica's home to investigate, he found her trailer dirty and messy. Kevin was not there, but Erica was home with a toddler. A woman Erica could not identify was asleep on the sofa. Erica told the social worker she was babysitting the toddler, but admitted that the child was Amy after the child called Erica "mommy." Erica also told the social workers that Kevin had been living with her, not with Erica's father. The division's social workers contacted Kevin at school. Kevin told them that his home was very messy, that many people came and went, and that the people there fought a lot-swearing, kicking, and punching.

The division took emergency custody of both children. They initially attempted to place Kevin with Erica's father. But when they were unable to contact him, they placed both children in emergency foster care. The division petitioned for custody of Kevin, alleging that he was a child in need of aid. At a temporary custody hearing the superior court found probable cause to believe that Kevin was a child in need of aid and committed him to the temporary custody of the division. Kevin's adjudication hearing was set for January 2000 but was continued several times upon motions filed by both parties.

Kevin was placed in foster care but his behavioral problems proved too severe for his foster family. His problems include sex-ualized behavior, head banging, biting, fire setting, defecating in his pants, and violence towards animals. He also exhibited fear for his security, including an inability to sleep unless an adult was present, nightmares, and verbal expressions of concern for his physical safety. Because of his special needs, Kevin was institutionalized at Charter North/North Star, then transitioned to therapeutic foster care.

Amy had already been declared a child in need of aid and placed in state custody until January 29, 2001. The division decided not to return Amy to her grandmother's care, since Erica's mother had allowed Erica to have unsupervised visits with Amy, and the division no longer trusted her to protect the child. Amy thus has remained in a pre-adoptive foster home since October 1999.

From October 1999 to September 2000 Erica was consistently employed, but her place of employment and work schedule changed frequently. The division scheduled weekly visitation between Erica and her children beginning in October 1999. Erica had difficulty coordinating her work schedule, the bus schedule, and the visitation schedule, and she was late or did not attend several visits. In response, the division helped her figure out which bus would arrive on time. In February 2000 the division assisted Erica in scheduling a substance abuse assessment. Erica's social worker called her home and learned that she was letting two men she knew only by first name live with her. Between January and April 2000, the police went to Erica's trailer three times to investigate distur-banees. In one instance, a man who slept in Erica's laundry room became violent after drinking, and in another case Erica's boyfriend punched her in the eye. In the third case, Erica was so drunk she could hardly stay awake to answer the officer's questions.

In June 2000 the state petitioned to revoke Erica's probation, alleging that she had violated her conditions by changing her residence without permission, consuming alcohol, ingesting cocaine, failing to undergo a substance abuse assessment, failing to maintain full-time employment, failing to complete a mental health evaluation, and failing to make restitution payments for the trailer that she burned down in 1995. The superior court released her on bail, and the division and her probation officer referred her to the residential substance abuse treatment program at Akeela House.

. In May 2000, a month before Erica was charged with violating the conditions of her probation, the division filed a petition to terminate Erica's parental rights to both Kevin and Amy. The division jointly petitioned to terminate Brian S.'s parental rights, as well, but it later moved for and received a continuance as to Brian so that it could conduct paternity testing to determine if he was Amy's father. Erica's termination trial was thus severed from Brian's. The court consolidated Kevin's child-in-need-of-aid adjudication hearing with the termination trial. The trial took place over thirteen days between January and April 2001. At the end of the trial, the superior court terminated Erica's parental rights to Kevin and Amy.

Erica appeals.

III. DISCUSSION

A. Standard of Review

We apply the clearly erroneous standard when reviewing the superior court's factual findings. Factual findings are clearly erroneous when we are convinced, upon review of the entire record, that a mistake has been made. Whether the superior court's factual findings satisfy applicable CINA rules is a question of law subject to de novo review.

B. The Superior Court Correctly Applied AS 47.10.088.

A court entering an order that terminates parental rights must find by clear and convincing evidence that the child was subjected to conduct or conditions placing the child in need of aid under AS 47.10.011 and that the parent has failed within a reasonable period of time to remedy the conditions that place the child at risk. The court must further find, by a preponderance of the evidence, that the division made reasonable efforts under AS 47.10.086 to provide family services to enable the child to return home. Finally, the court must find that termination is in the child's best interests. Erica challenges the trial court's reasonable efforts and best interests findings.

1. Reasonable efforts

The trial court found by "more than a preponderance of the evidence" that the division made reasonable efforts to prevent the breakup of Erica's family. But Erica, focusing on the narrow time frame between January 1999 and November 2000, contends that the division failed to make reasonable efforts. Specifically, Erica argues that during this period the state did not provide the particular services that would have addressed her problems, including assistance with "thinking, organizing, and co-dependence," "treatment for depression," and a bonding assessment of Amy. She also alleges that the division did not provide reasonable visitation after Kevin and Amy were removed from her home. The state responds that Erica did, in fact, receive services of the type she denies receiving. The state also argues that the reasonableness of its efforts during the disputed period must be evaluated in light of the extensive services it provided over the entire course of the division's involvement with Erica.

The record establishes that the state provided a number of services in the disputed period. Between September 1998 and May 1999, while serving her sentence for misconduct involving a controlled substance, Erica participated in a halfway house program at Akeela House. Although the Department of Corrections placed her in the program, we have held that "[IJt is of no particular consequence that the Department of Corrections ... rather than DFYS" provided a particular service. In March 1999 the division referred Erica for one of several psychological evaluations that it provided over the years. Although the record does not indicate that Erica received any services between her release from Akeela House sometime after April 1999 and the removal of Kevin and Amy from her care in October 1999, after their removal in October the division consistently offered services to assist Kevin and Amy and facilitate their return home, including services to help address Kevin's special needs. It also offered Erica a urinalysis program, a substance abuse assessment, visitation with Kevin and Amy, further residential treatment for substance abuse at Akeela House, and referrals for counseling to address the issues underlying Erica's substance abuse, such as depression and co-dependence.

In any event, as the state correctly recognizes, the reasonableness of the division's efforts in 1999 and 2000 must be viewed in light of the entire history of services that the state 'had already provided. As detailed above in the statement of facts, Erica's substance abuse and parenting problems arose well before Kevin and Amy were born, and the division had already made substantial efforts to assist Erica before it intervened on behalf of Kevin and Amy. Between Kevin's birth in September 1998 and the beginning of the disputed period here, January 1999, the division continued to make extensive efforts. In fact, Erica stipulated to the reasonableness of the state's efforts from July 1992 through August 1996 and does not challenge the court's finding of reasonable efforts for the period between September 1996 and January 1999.

We have held that "the state's efforts to prevent breakup of the entire family" may be considered "in assessing whether that effort was sufficient" with respect to a particular child. Thus, in determining what efforts would be reasonable for Erica from January 1999 onward, the court was entitled to consider the division's extensive history of efforts and Erica's consistent lack of success at addressing problems. When viewed in light of this history, the superior court's finding of reasonable efforts is not clearly erroneous.

2. Best interests

Alaska Statute 47.10.088 requires the court to consider whether termination of parental rights is in the best interests of the child. Erica challenges the superior court's best interests finding. She points to her care of Amy during the child's first six months and her family physician's assessment that Amy is developmentally age-appropriate. Erica also contends that she has support from family members, pointing to their care of Kevin while she was incarcerated in 1998.

Erica further argues that the superior court should have adopted the recommendations of Dr. Bruce Smith rather than those of Dr. Richard Lazur. Both psychologists evaluated Erica's parenting capacity in 1999. Dr. Lazur believed that Erica was unlikely ever to be capable of parenting. In contrast, although Dr. Smith agreed that should not have primary responsibility for parenting her children, he suggested a permanent plan that would allow her frequent contact with the children by placing them in the primary custody of Erica's parents, who could provide for their day-to-day parenting needs. Dr. Smith believed that this arrangement "would appear to meet the best interest[s] of the children." Erica insists that Dr. Smith was more objective and eredible than Dr. Lazur.

But the trial court, not this court, decides issues of credibility. "Because of the unique ability of the trial court to assess credibility, this court consistently grants deference to trial courts where credibility is at issue." Here, the superior court could reasonably find Dr. Lazur's testimony more persuasive than Dr. Smith's. Moreover, the ree-ord does not suggest that the superior court believed that either psychologist's testimony was crucial. The court's best interests findings appear to rely on evidence establishing that a permanent plan calling for Erica's parents to have primary custody was not a viable option. Undisputed evidence showed that neither parent was willing to care for Kevin. And although Erica's mother did say that she would be willing to assist Erica by taking primary custody of Amy, ample evidence supports the superior court's decision that Erica's mother would be unlikely to protect Amy from Erica: Erica's mother had repeatedly allowed Erica to have unsupervised visits with Amy, had a history of failing to follow the division's directions concerning her sister's children, and persistently refused to acknowledge that Erica had serious parenting and substance abuse problems.

As is clear from the statement of facts, the state presented overwhelming evidence of Erica's repeated failure to care appropriately for her children and her longstanding lack of success in substance abuse treatment. Erica's background is checkered with periods of progress and backslide. Although at the end of the trial, in April 2001, Erica showed signs of improvement, her counselor estimated that it would take at least another year for her to be able to demonstrate her ability to care for her children-assuming that she continued to progress. When viewed in light of the record as a whole, the superior court's best interests findings are supported by substantial evidence and are not clearly erroneous.

C. - Misapplication of Facts

Erica further alleges that the superior court failed to separately consider the evidence as it related to each child and that it applied evidence concerning individual children to both. Specifically, Erica challenges a finding as to Kevin in the superior court's December 1999 temporary commitment order that, according to Erica, was based on evidence relating only to Amy. Erica also argues that because Dr. Lazur's evaluation of her parenting skills focused only on her relationship with Amy, the evaluation had no bearing on her ability to parent Kevin. But Erica's own counsel drafted the final findings in the temporary commitment order; and, in any event, the termination order now renders those findings moot. Furthermore, as already discussed above, psychological testimony did not play a crucial role in the trial court's ruling-particularly as to Kevin, since neither of Erica's parents was willing to assume primary custody of Kevin. In short, Erica's claims are meritless.

D. Jurisdiction

Erica argues that the superior court lacked jurisdiction over Amy. Erica's argument is based on the following cireumstances.

On January 29, 1999, the superior court ordered Amy committed to the division's custody for two years. Because of multiple continuancees requested by both parties, the termination trial did not begin until the day custody expired-January 29, 2001. At the time, none of the parties realized that the division's custody over Amy had expired. But the division soon recognized the problem. On February 21, 2001, it filed an emer-geney petition to adjudicate Amy a child in need of aid, and on February 26, the superior court entered an order renewing the state's custody of Amy based on a renewed finding that Amy was a child in need of aid. Meanwhile, on February 22, Erica had signed a power of attorney purporting to give her mother authority over Amy's "care eustody and upbringing."

Erica essentially reasons that because she gave legal custody of Amy to her mother during a lapse in the state's custody, the court lacked jurisdiction to reassume custody. But Erica's power of attorney was not an assignment of legal custody; it simply gave Erica's mother authority to act in her stead in matters concerning Amy's care, custody, and upbringing. Erica cites no authority for the proposition that the document had any effect on the court's jurisdiction. Under AS 47.10.080(c), the superior court has authority to extend a two-year child-in-need-of-aid commitment for an additional year upon a showing that the extension would be in the child's best interests. Nothing in the statutory grant of authority precludes the extension from being implemented after the initial two-year commitment has technically expired. Erica's jurisdictional argument thus lacks merit.

E. Due Process

The children's father, Brian S., was in jail throughout the termination trial, The state's petition initially sought to terminate both Erica's and Brian's parental rights, but the state moved for and the court granted a continuance of Brian's termination trial. Although the continuance severed Brian's case from Erica's, the court allowed Brian's counsel to attend and participate in Erica's trial. Brian was present telephonically.

Erica contends that terminating her parental rights before Brian was released from jail violated her due process rights because it prevented her from benefitting from having additional time to progress in her treatment program. She further contends that allowing Brian's counsel to participate at her trial violated her due process rights because it allowed three attorneys (the state, the guardian ad litem, and the father's counsel) to argue for termination. The state responds that this argument is waived because Erica has failed to show how Brian's participation prejudiced her. The guardian ad litem adds that Erica cites no legal support for these claims.

The superior court considered Erica's objection to Brian's presence and participation but decided to allow it. As the children's biological parent, Brian bad a legitimate interest in Erica's termination proceedings. Erica has cited no legal authority suggesting that the superior court erred in allowing him to attend and to be represented by counsel, and we are aware of no such authority. Moreover, Erica provides no basis for her claim of a constitutional right to additional time in treatment. We find no error in the trial court's decision.

F. Foster Care Placement

Barring certain exceptions, AS 47.14.100 prohibits the state from placing a child in foster care if a relative requests placement of the child in the relative's home. Erica contends that when the state took emergency custody of Kevin and Amy in October 1999, it should have placed them with relatives rather than in foster care. This error, she argues, entitles her to a reversal of the superior court's termination order.

The state and the guardian ad litem correctly respond that the October 1999 temporary custody order is not properly before this court. This appeal is from the superior court's ultimate decision to terminate Erica's parental rights. In reaching its termination decision, the superior court was not required to revisit its earlier placement decision and its termination order superseded all earlier placement orders. As the state correctly points out, Erica could have challenged those placement decisions by requesting superior court review. Erica could then have petitioned this court for review of the superior court's ruling. Because Erica failed to seek timely review, the superior court's termination order now renders earlier issues of placement moot.

G. Remaining Claims

Erica raises several additional claims that she has not properly preserved for review. Specifically, Erica claims that the superior court erred in October 1999 when it found probable cause to believe that Kevin was a child in need of aid; that the state abridged her due process rights by failing to investigate the circumstances surrounding Amy's presence in Erica's home in October 1999 and by failing to provide notice to Erica's mother that Amy was not allowed unsupervised visits with Erica; and that the superior court violated her due process rights by relying on an unsigned case plan and by failing to hold adjudication and permanency hearings for Kevin within the statutorily mandated time frame.

Erica has failed to cite any point in the record where she raised these issues; our review of the record has not uncovered any indication that she did so. We will not review issues that were not properly raised in the trial court.

IV. CONCLUSION

We AFFIRM the superior court's order terminating Erica's parental rights to Kevin and Amy.

      . Pseudonyms are used throughout the opinion to protect the privacy of those involved.

      . See M.W. v. State, Dep't of Health & Social Servs., 20 P.3d 1141, 1143 (Alaska 2001).

      . See id. at 1143.

      . See id.

      . AS 47.10.088(a)(1).
      AS 47.10.088 provides, in relevant part:
      (a) [TThe rights and responsibilities of the par-
      ent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds
      (1) by clear and convincing evidence that
      (A) the child has been subjected to conduct or conditions described in AS 47.10.011; and
      (B) the parent
      (i) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
      (ii) 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; and
      (2) by preponderance of the evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts.

      (c) In a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child.
      AS 47.10.011 provides, in relevant part:
      Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following:

      (6) the child has suffered substantial physical harm, or there is a substantial risk that the child will suffer substantial physical harm, as a result of conduct by or conditions created by the child's parent, guardian, or custodian or by the failure of the parent, guardian, or custodian to supervise the child adequately;

      (9) conduct by or conditions created by the parent, guardian, or custodian have subjected the child or another child in the same household to neglect;
      (10) the parent, guardian, or custodian's ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child....

      . AS 47.10.088(a)(2).
      The reasonable efforts provisions 47.10.086 provide, in relevant part: of AS
      (a) Except as provided in (b) and (c) of this section, the department shall make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home, when appropriate, if the child is in an out-of-home placement. - The department's duty to make reasonable efforts under this subsection includes the duty to
      identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid; (1 ~~
      (2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; the department shall refer the parent or guardian to community-based family support services whenever community-based services are available and desired by the parent or guardian; and
      (3) document the department's actions that are taken under (1) and (2) of this subsection.

      . See AS 47.10.088(c) see also CINA Rule 18(c)(2)(C) (requiring the superior court to find by a preponderance of the evidence that termination of parental rights is in the best interests of the child).

      . A.M. v. State, 945 P.2d 296, 305 (Alaska 1997).

      . - Although more visitation might have been possible during the disputed period, the record suggests that Erica bears much of the responsibility for the limited visitation. Erica's social worker submitted an affidavit documenting twelve scheduled visits between December 17, 1999 and February 24, 2000, of which four occurred. Six did not occur because Erica was late or failed to appear. Kevin missed one visit because of a doctor appointment, and Amy missed one visit because her foster parents could not transport her to the visit. One visit did not occur because the social worker was out of town. The social worker also stated that he helped Erica figure out which bus would arrive in time for the visits, and that he contacted her three times regarding visitation and took her calls six times.

      . E.A. v. State, 46 P.3d 986, 990 (Alaska 2002).

      . Id. at 991.

      . AS 47.10.088(c) provides:
      In a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child.

      . See In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001).

      . Wasserman v. Bartholomew, 38 P.3d 1162, 1167 (Alaska 2002).

      . AS 47.10.080 provides, in relevant part:
      (c) If the court finds that the child is a child in need of aid, the court shall
      (1) order the child committed to the department for placement in an appropriate setting for a period of time not to exceed two years ... except that the department or the child's guardian ad litem may petition for and the court may grant in a hearing
      (A) one-year extensions of commitment ... if the extension is in the best interests of the child[.]

      . AS 47.14.100 provides, in relevant part:
      (e) A child may not be placed in a foster home or in the care of an agency or institution providing care for children if a relative by blood or marriage requests placement of the child in the relative's home. However, the department may retain custody of the child and provide for its placement in the same manner as for other children if the department
      (1) makes a determination, supported by clear and convincing evidence, that placement of the child with the relative will result in physical or mental injury ...;
      (2) determines that a member of the relative's household who is 12 years of age or older was the perpetrator in a substantiated report of abuse under AS 47.17; or
      (3) determines that a member of the relative's household who is 12 years of age or older is under arrest for, charged with, has been convicted of, or has been found not guilty by reason of insanity of, a serious offense....

      (f) ... Nothing in ... (e) of this section applies to child placement for adoptive purposes.

      . See AS 47.10.088; CINA Rule 18.

      . CINA Rule 19.1(b) provides for superior court review of placement decisions:
      At any time in a proceeding, a party who is opposed to the Department transferring a child from one placement to another may move the court for a review hearing at which the requesting party must prove by clear and convincing evidence that the transfer would be contrary to the best interests of the child[.]

      . See Alaska Appellate Rule 402, which provides in pertinent part that:
      An aggrieved party ... may petition the appellate court as provided in Rule 403 to review any order or decision of the trial court, not appealable under Rule 202, and not subject to a petition for hearing under Rule 302, in any action or proceeding. ...

      . Erica similarly challenges the trial court's denial of her March 2000 motion for a hearing to review Kevin's placement in Charter North and Amy's placement with her foster family. This claim likewise is moot.

      . See, eg., D.E.D. v. State, 704 P.2d 774, 780 (Alaska 1985).


source: Caselaw Access Project

author: CARPENETI, Justice. BRYNER, Justice,

license: Public Domain

text:
    Iris ENDERS, Appellant, v. Connie PARKER, Personal Representative of the Estate of Joel W. Kottke, Appellee. Connie Parker, Personal Representative of the Estate of Joel W. Kottke, Cross-Appellant, v. Iris Enders and Ralph Kottke, Cross-Appellees.
    Nos. S-9341, S-9391.
    Supreme Court of Alaska.
    March 21, 2003.

      Timothy R. Byrnes, Hughes Thorsness Powell Huddleston & Bauman LLC, Anchorage, for Appellant/Cross-Appellee Enders.
    C. James Mathis, Davis & Davis, P.C., Anchorage, for Appellee/Cross-Appellant.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION ON REHEARING

CARPENETI, Justice.

I. INTRODUCTION

Iris Enders unsuccessfully challenged the admission into probate of Joel Kottke's 1997 will, which named his companion Connie Parker as personal representative, on the grounds of undue influence and insane delusions. We previously upheld the superior court's rejection of that challenge.

Iris Enders now appeals the superior court's denial of her AS 18.16.485 claim for costs and attorney's fees arising out of her unsuccessful prosecution of the will contest. Connie Parker cross-appeals the superior court's refusal to award her attorney's fees and costs under Alaska Civil Rules 82(b) and 79(b). Because AS 18.16.4835 does not require that a personal representative or nominated personal representative's actions benefit the estate before the personal representative can recover expenses, we vacate the superior court's denial of Enders's AS 13.16.4835 claim. Because the superior court did not make specific findings as to whether Enders prosecuted the will contest in good faith, we remand this case for specific findings on this issue. Because the attorney's fees and costs provisions of Civil Rules 82(b) and 79(b) are inapplicable to probate proceedings, we affirm the superior court's denial of Parker's motion seeking attorney's fees and costs under these rules.

II. FACTS AND PROCEEDINGS

A. Facts

Joel Kottke executed a will in 1983, nominating his stepdaughter Iris Enders as sue-cessor to his wife Martha as personal representative and leaving fifty percent of his estate to his siblings and fifty percent to Martha's children. After Martha's death in 1991, Kottke entered into a relationship with Connie Parker. Parker lived with Kottke and cared for him when he was diagnosed with cancer.

In June 1997, four months before his death, Kottke executed a new will disinheriting his siblings and stepchildren in favor of Parker. The 1997 will nominated Connie Parker as Kottke's personal representative. After Kottke's death in October 1997, Parker obtained appointment as special administrator and sought to probate the 1997 will. Enders and Joel's brother Ralph Kottke then filed a petition to set aside the 1997 will based on the theories of undue influence and insane delusions.

After a seven-day evidentiary hearing in July 1998, Superior Court Judge Sen K. Tan upheld the 1997 will and appointed Parker as Kottke's personal representative. Enders and Ralph Kottke appealed to this court. We affirmed the superior court's thoughtful and thorough decision.

B. Proceedings

Several weeks after the evidentiary hearing, Enders served Parker with a claim for administrative expenses incurred in the litigation of the will contest pursuant to AS 13.16.485. Enders's claim itemized expenses of $82,987.07; a later supplement itemized further expenses of $14,837.71. Parker did not formally respond to this claim.

On September 21, 1998 Enders filed a petition for allowance of her AS 18.16.485 claim with the superior court. Parker opposed the petition and also moved for costs and attorney's fees under Civil Rules 79 and 82. The superior court denied Enders's petition on the grounds that her claim did not benefit Kottke's estate. The court also denied Parker's motion, ruling that it would not award fees and costs under the civil rules because there is a specific statutory scheme for awarding costs and fees for will contests.

Enders appeals the denial of her petition. Parker cross-appeals the denial of her motion for costs and attorney's fees.

III. STANDARD OF REVIEW

Enders challenges the superior court's interpretation of AS 13.16.485; Parker challenges the superior court's interpretation of Civil Rules 79 and 82. We review a trial court's interpretation of statutes and court rules under the independent judgment standard. When construing the meaning of a statute under this standard, we "look to 'the meaning of the language, the legislative history, and the purpose of the statute'" and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

A. Alaska Statute 13.16.4385 Governs Recovery from the Estate of Expenses Incurred in Estate Litigation; It Does Not Impose a Requirement that the Litigation Benefit the Estate.

1. Alaska Statute 13.16485 does not contain a benefit-to-the-estate requirement.

After considering "whether the actions of the personal representative benefitted the estate," the superior court denied Enders's claim on the grounds that her "conduct fails to meet the requirement that a personal representative must act to benefit the estate." But AS 18.16.485 contains no benefit-to-the-estate requirement.

We have not yet interpreted AS 13.16.435. When interpreting a statute, we look to its language "construed in light of the purpose of its enactment." If the language of the statute is unambiguous and expresses the legislature's intent, and if no ambiguity is revealed by its legislative history, we will not modify or extend the statute by judicial construction. "Where a statute's meaning appears clear and unambiguous, ... the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent."

The language of AS 13.16.4835 is unambiguous. It states that a personal representative or nominated personal representative who has prosecuted or defended a probate action in good faith is entitled to recover all necessary expenses and disbursements, regardless of whether he or she prevailed in the action. Nothing in the text of the statute suggests that a court has the discretion to determine whether a personal representative's actions benefitted the estate before awarding a personal representative his or her administrative expenses.

Our examination of the legislative intent and policies behind the statute and the Uniform Probate Code (UPC) yields nothing that meets the burden of demonstrating contrary legislative intent. - Alaska Statute 13.16.4835 is taken directly from the UPC, which Alaska adopted in 1972. Alaska Statute 18.06.010(a) states that the provisions comprising the Alaska UPC "shall be liberally construed and applied to promote their underlying purposes and policies." Alaska Statute 13.06.010(b) sets out five such purposes and policies. Two purposes support the conclusion that no benefit-to-the-estate requirement should be found; only one even arguably supports the opposite conclusion. Thus, Parker has not met her heavy burden of demonstrating a legislative intent that is contrary to the clear and unambiguous words of the statute.

In conclusion, the text of AS 18.16.485 contains no benefit-to-the-estate requirement. The legislature's expressed policies and purposes in enacting the statute do not suggest such a requirement. Accordingly, we hold that AS 18.16.485 does not require a personal representative or a nominated personal representative to show that a will contest has benefitted the estate before he or she may recover expenses under the statute.

We have seen that AS 18.16.485 does not require a benefit-to-the-estate analysis. We turn now to what the statute does require. It imposes only three requirements for the recovery from the estate of expenses incurred in estate litigation:

If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, that person is entitled to receive from the estate necessary expenses and disbursements including reasonable attorney fees incurred.

Thus, in order for the claimant to recover, (1) he or she must be a personal representative or nominated as a personal representative; (2) he or she must have brought or defended the proceeding in good faith; and (8) expenses must be "necessary" and attorney's fees "reasonable." It is immaterial whether the party seeking the expenses prevailed in the action; if the requirements are met, the party is entitled to receive reimbursement from the estate for expenses incurred in the litigation, including attorney's fees.

2. Enders is a nominated personal representative for the purposes of AS 13.16.435.

Alaska Statute 18.16.4850 explicitly provides that a nominated personal representative can recover expenses. Enders was nominated as a personal representative under Kottke's 1988 will; therefore, she is eligible to receive administrative expenses from Kottke's estate under the statute.

3. - The superior court made insufficient findings as to whether Enders brought the will contest in good faith.

Because Enders meets the nominated personal representative requirement in AS 13.16.4835, she can recover her necessary and reasonable expenses if she brought the will contest in good faith,. The issue of good faith was extensively litigated below, but the superior court did not make specific findings on it. Instead, the court rested its decision to deny fees under AS 18.16.485 on its conclusion that Enders's actions did not benefit the estate. As we have seen, the court's reliance on a benefit-to-the-estate requirement was error. We turn now to the sufficiency of the court's findings on good faith.

Enders argues that she must recover unless the superior court makes an explicit finding that she acted in bad faith, and that it did not do so. While the superior court used strongly critical language of Enders in its decision, the court's findings are not explicit on the question of good faith. Because the findings erroneously focused on the question whether Enders's actions benefitted the estate, we are unable to say that the court would have explicitly found a lack of good faith. We must remand to the superior court for findings, sufficiently specific or detailed to allow for meaningful appellate review, on the question whether Enders acted in good faith. To aid the court in this task, we note the following.

Although "good faith" is not defined in the probate statutes, the statutory obligations of the personal representative shed light on the meaning of that term. A personal representative is a fiduciary who is statutorily obligated to "observe the standards of care applicable to trustees ... [and who] is under a duty to settle and distribute the estate ... as expeditiously and efficiently as is consistent with the best interests of the estate." "[A] fiduciary relationship exists when one imposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one imposing the confidence." The fiduciary duty is "the highest standard of duty implied by law." And it is statutorily recognized as an obligation of the personal representative of the estate of a decedent. Alaska Statute 18.16.350(a) requires that a personal representative use her authority "for the best interests of successors to the estate." In the context of two competing wills with different personal representatives, it is to be expected that the "successors" will not be identical. Each personal representative thus must act for the best interests of the successors named in the will which each personal representative is respectively seeking to uphold. We hold that "good faith" under AS 13.16.4835 incorporates the statutory requirement that a personal representative act with the intent to benefit successors named in the instrument the personal representative seeks to uphold, but does not incorporate a requirement that the acts of the personal representative actually benefit the estate. In making its findings concerning good faith, the superior court should consider whether End-ers had reasonably arguable grounds to challenge the 1997 will. Presence of such grounds would imply good faith on her part; absence of such grounds would imply a lack of good faith.

B. Rule 82(b) Attorney's Fees and Rule 79 Costs

On cross-appeal, Parker contends that she is entitled to an award of Civil Rule 82(b)(2) attorney's fees and Rule 79(b) costs against Enders because she was the prevailing party in the will contest. We disagree.

Civil Rule 82 provides for an award of attorney's fees to the prevailing party "[elx-cept as otherwise provided by law." Here, the legislature has expressly provided otherwise by law. It has provided that a designated personal representative can recover "necessary expenses and disbursements including reasonable - attorney - fees - incurred." Therefore, Civil Rule 82 does not apply in this case. If a specific statutory scheme for attorney's fees exists, Civil Rule 82 does not apply. And since the statute also clearly covers costs incurred in the litigation, Civil Rule 79 likewise does not apply.

Because AS 18.16.4385 sets out a specific statutory scheme for awarding attorney's fees, Parker is not entitled to an award of attorney's fees and costs under Civil Rules 82(b) and 79(b).

v. CONCLUSION

Because AS 18.16.485 does not contain a requirement that a nominated personal representative's actions benefit the estate before the nominated personal representative can recover expenses from the estate, we VACATE the superior court's denial of Enders's AS 18.16.485 claim. We REMAND this case for specific findings as to whether Enders prosecuted the will contest in good faith and a redetermination of the AS 18.16.4835 claim.

Parker's cross-appeal is meritless; therefore, we AFFIRM the superior court's denial of Parker's motion for attorney's fees and costs under Civil Rules 82(b) and 79(b).

BRYNER, Justice, with whom FABE, Chief Justice, joins, dissenting.

BRYNER, Justice,

with whom FABE, Chief Justice, joins, dissenting.

In our original ruling in this appeal, we affirmed the denial of Enders's application for attorney's fees, unanimously concluding that the superior court adequately addressed the issue of Enders's bad faith. With scearcely a glance at our original reasoning and without explaining its change of heart, today's opinion on rehearing turns about-face and vacates the superior court's attorney's fee ruling; it now concludes that the superior court's findings on bad faith were insuffi-client. Our first opinion reached a sound, well-reasoned conclusion, and it speaks for itself as my view of a correct resolution of this case. But the court's new reasoning does not support today's opinion and thus requires additional comment.

The opinion on rehearing begins by noting that "the superior court denied Enders's claim on the grounds that her 'conduct fails to meet the requirement that a personal representative must act to benefit the estate."" Construing the superior court's remark to mean that the court applied a benefit-to-the-estate-requirement to Enders's request for fees, the opinion holds that AS 18.16.4385 imposes no such requirement and that the statute allows a nominated personal representative to recover reasonable attorney's fees necessarily incurred in good-faith litigation, regardless of whether it results in actual benefit to the estate.

Having so decided, the opinion on rehearing holds that the superior court erred in applying a benefit-to-the-estate requirement and in neglecting to make explicit findings on good faith:

The issue of good faith was extensively litigated below, but the superior court did not make specific findings on it. Instead, the court rested its decision to deny fees under AS 18.16.485 on its conclusion that Enders's actions did not benefit the estate. As we have seen, the court's reliance on a benefit-to-the-estate requirement was error.... While the superior court used strongly critical language of Enders in its decision, the court's findings are not explicit on the question of good faith Because the findings erroneously focused on the question whether Enders's actions ben-efitted the estate, we are unable to say that the court would have explicitly found a lack of good faith.[]

But this holding unfairly accuses the superior court of applying a benefit-to-the-estate requirement and overlooks its unequivocal findings that Enders acted in bad faith. In the early part of its fee decision, the superior court did discuss cases that nominally apply a benefit-to-the-estate requirement in awarding attorney's fees. But the court nowhere suggested that it construed these cases as allowing it to rule that conferral of an actual benefit on the estate was a prerequisite to- or even an important factor bearing on-an award of fees under AS 18.16.485. To the contrary, a careful review of the superior court's ruling shows that the court believed just the opposite.

In beginning its analysis, the superior court cited an early Alaska precedent, In re Underwood's Estate. The court in Underwood did not adopt the actual-benefit rule-that is, it did not require a financial gain to the estate or success in litigation as a condition of reimbursing expenses; rather, it more narrowly recognized that reimbursement would be allowed for any necessary work done "in the interest or for the benefit of the estate." Here, the superior court recognized that Underwood stood for this proposition, describing that case as holding that attorney's fees are allowed "if the services are rendered for the benefit of the estate." Thus, in beginning its fee decision in the present case, the superior court unquestionably understood that AS 13.16.485 did not require Enders to prevail on her claim or to have actually advanced the estate's financial interests in order to recover fees. Although the court expressly recognized that Enders's unsuccessful claim "did not bring about an enhancement in value or an increase in the assets of the estate," the court did not stop its analysis there; it looked farther, to the underlying purposes of Enders's action, noting that the relevant inquiry was whether Enders's action against the estate was motivated by a desire to discover Kottke's true testamentary intent and to achieve a proper disposition of the estate's property.

The court thus proceeded to describe in depth the extensive cireumstantial evidence revealing Enders's motives for pursuing the action. The court observed, for example, that

Joel W. Kottke took every precaution to ensure that his 1997 will would be probated. He sought independent legal counsel by a competent probate lawyer, he had himself videotaped while announcing his testamentary intentions, and he was not hasty in making his decisions. Joel Kottke took all these steps because he was concerned that Ms. Enders would challenge his 1997 will. When Ms. Enders discovered that Mr. Kottke had changed his 1983 will, she immediately questioned his testamentary capacity. Dr. Webb, Mr. Kottke's oncologist, and John Burke, a representative of the Division of Senior [Slervices looked into Mr. Kottke's testamentary capacity and freedom from undue influence. Both reported that Mr. Kottke was not suffering [from] insane delusions and that he was not the subject of undue influence by Connie Parker. Yet Ms. Enders continued to pursue her claims.
At no stage pre-trial or at trial did Ms. Enders claim that she was acting as personal representative. She makes this claim only after trial.

The facts of the case led the superior court to conclude "that Ms. Enders failed to act in the estate's interest." Hence, in denying Enders's motion for fees, the court did not dwell on the obvious fact that Enders had lost her case or rule that a personal representative's act must benefit the estate. Instead, the court specifically said that a personal representative "must act to benefit the estate." The distinction is crucial. The former proposition-that a personal representative "must benefit the estate"-de-seribes the benefit-to-the-estate requirement, which would allow a fee award only when an action's outcome actually benefits the estate. In contrast, the latter proposition-that the personal representative "must act to benefit the estate"-looks to the personal representative's motives for acting; it simply requires a suit to be brought for the purpose of benefiting the estate. In concluding that Enders failed to "act to benefit the estate," then, the superior court simply found that Enders had sued for ulterior motives, and not for the purpose of benefiting the estate. Because the court's findings as to Enders's motivations and purposes did not pin her fee award to a successful outcome, they did not amount to an incorrect application of the benefit-to-the-estate requirement.

This interpretation of the trial court's reasons for denying fees finds strong confirmation in other specific factual findings. The trial court expressly found that "Ms. End-ers'[s] case was a contest for her own personal benefit," that "[the real impetus behind the litigation is the Enders[ ] family['s] personal animosity and disdain for Connie Parker," and that "[tlhis immense distaste for Ms. Parker has propelled Ms. Enders to drain Mr. Kottke's modest estate through litigation."

Although the opinion on rehearing dismisses these statements as nothing more than "strongly critical language," they are certainly more than that: they are express, affirmative findings that Enders's conduct was motivated by her overriding animosity and self-interest and not by a good faith desire to benefit the estate. These findings are supported by substantial evidence, and they are not clearly erroneous. Moreover, the superior court's earlier findings rejecting Emnders's will contest on its merits foreshadow and bolster its later findings concerning Enders's motives for suing; and we have previously reviewed and upheld those earlier findings, declaring them "exemplary" and free of error.

None of these findings touches on the issue of whether Enders's challenge to Kottke's will actually benefited the estate. To the contrary, they all bear solely on Enders's motives for prosecuting her action, thus belying the conclusion that the superior court denied Enders's application because her suit ultimately failed to provide a benefit to the estate. Yet despite the strength of the ree-ord against that conclusion, today's opinion fails to point to any findings supporting its theory that the superior court attached undue importance to Enders's failure to prevail. Indeed, had the superior court believed that AS 18.16.4835 required proof of actual benefit, it could simply have rejected Enders's fee application as a matter of law on the ground that she had failed to prevail, without considering extensive argument on the issue of her good faith or making detailed findings concerning her motives for suing.

I thus see no sound basis to accuse the superior court of erroneously applying a benefit-to-the-estate requirement, and no good reason to doubt that it properly based its denial of fees on its evaluation of Enders's ulterior motives for suing.

The opinion on rehearing separately questions the sufficiency of the superior court's findings concerning bad faith: "Because the findings erroncously focused on the question whether Enders's actions benefitted the estate," the opinion professes, "we are unable to say that the court would have explicitly found a lack of good faith." But any doubts based on a supposed lack of "explicit" findings are groundless. For despite the superior court's failure to recite the words "bad faith" explicitly, its ruling leaves no uncertainty as to its view on the issue; the ruling incorporates explicit factual findings that mirror the relevant definition of bad-faith litigation.

As the opinion on rehearing acknowledges, AS 13.16.485's good faith requirement reflects the Alaska Probate Code's recognition that a personal representative serves in a fiduciary role. Thus, in claiming to act as a nominated personal representative, Enders placed herself under the "special confidence" of this relationship and, "in equity and good conscience, [was] bound to act in good faith and with due regard to the interests of the one imposing the confidence." Under AS 18.16.350(a) Enders owed her fiduciary duty to Kottke's estate; that duty required her to serve the best interests of the estate and of Kottke's successors; and it obliged her to observe the same statutory standards of care that trustees must observe in managing trust assets. - Alaska's trust laws require trustees to act with loyalty and impartiality. Accordingly, Enders had a duty to act "solely in the interest" of Kottke's estate and its beneficiaries and to do so "impartially ..., taking into account any differing interests of the beneficiaries."

The court's opinion on rehearing correctly warns that, to meet these obligations as a nominated personal representative in a contest between two competing wills, Enders needed only to act with intent to benefit those successors named in the will that she supported. But this altered perspective has little bearing on the basic quality of Enders's duty: no matter what set of beneficiaries she purported to serve, Alaska's definition of good faith required Enders to act out of a genuine concern for Kottke's true will as she honestly perceived it, unambiguously precluding her from suing out of personal interest or for ulterior motives.

Yet here, the superior court explicitly found that Enders acted for her own self-interest, motivated by her overriding hostility toward Parker. The court denied End-ers's application after explicitly finding

* "Ms. Enders'[s] case was a contest for her own personal benefit";
* "The real impetus behind the litigation is the Enders] familyl's] personal animosity and disdain for Connie Parker"; and
* "This immense distaste for Ms. Parker has propelled Ms. Enders to drain Mr. Kottke's modest estate through litigation|. J" []

These are clear, unequivocal, and explicit statements of the superior court's considered view that Enders's action was motivated by

spite and that she prosecuted her claim against Parker for the purpose of draining the estate through litigation-not to secure the estate's benefit for individuals who End-ers believed were Kottke's rightful successors, and not because Enders had any genuine concern for Kottke's true will. The superior court's findings leave no doubt concerning its view of this issue.

Because a needless remand for ritualistic incantation of the words "bad faith" will only invite another round of appeal, which, in turn, will almost certainly seal Enders's vie tory in her efforts to drain Kottke's estate, I dissent.

      . This opinion replaces the opinion issued on August 10, 2001.

      . The 1997 will left Parker an interest in Kottke's Anchorage property, left Enders an interest in Kottke's property in Kenai, and left Parker the residuary estate under a trust system that was effectively a life estate.

      . In re Estate of Kottke, 6 P.3d 243, 247 (Alaska 2000).

      . Fancyboy v. Alaska Village Elec. Coop., Inc., 984 P.2d 1128, 1132 (Alaska 1999) (stating that we apply our independent judgment to interpretation of statutes); see also Compton v. Chatanika Gold Camp Props., 988 P.2d 598, 601 (Alaska 1999).

      . Fancyboy, 984 P.2d at 1132 (quoting Muller v. B.P. Exploration (Alaska), Inc., 923 P.2d 783, 787 (Alaska 1996)).

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

      . Yahara v. Constr. & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993) (quoting J & L Diversified Enters., Inc. v. Municipality of Anchorage, 736 P.2d 349, 351 (Alaska 1987)).

      . Id. (citing Alaska Pub. Employees Ass'n v. City of Fairbanks, 753 P.2d 725, 727 (Alaska 1988) (quoting State, Dep't of Natural Res. v. City of Haines, 627 P.2d 1047, 1049 (Alaska 1981))).

      . University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska 1997).

      . AS 13.16.435 provides:
      Expenses in estate litigation. If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, that person is entitled to receive from the estate necessary expenses and disbursements including reasonable attorney fees incurred.

      . Unif. Probate Code § 3-720 (amended 1993), 8 U.L.A. 184 (1998).

      . Ch. 78, § 1, SLA 1972. The statutes comprising the Uniform Probate Code in Alaska are AS 13.06 through 13.36. See AS 13.06.005.

      . AS 13.06.010(b) provides:
      The underlying purposes and policies of AS 13.06-AS 13.36 are to
      (1) simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons;
      (2) discover and make effective the intent of a decedent in distribution of the decedent's property;
      (3) promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent's successors;
      (4) facilitate use and enforcement of certain trusts; and
      (5) make uniform the law among the various jurisdictions.
      Because purposes (1) and (4) are not relevant to our analysis, we do not discuss them here.

      . Subsection (2) ("discover and make effective the intent of a decedent] supports this conclusion because a good faith will contest can be effective in the discovery of a decedent's intent. See Watts v. Newport, 151 Fla. 209, 9 So.2d 417, 421 (1942) (finding sufficient justification in having "both the proponent and the heirs ... represented by able and industrious attorneys acting in good faith and earnestly representing their respective sides of the controversy in their capacity [as] attorneys for their respective clients and also as honorable officers of the court, to the end that the question of the validity of the purported will be thoroughly tried out and determined").
      Subsection (5) ["make uniform the law among the various jurisdictions'] likewise supports the conclusion because AS 13.16.435 is a verbatim adoption of section 3-720 of the UPC and because case law from other UPC jurisdictions with identical or nearly identical statutes overwhelmingly supports the notion that AS 13.16.435 does not contain a benefit requirement. See, e.g., In re Estate of Killen, 188 Ariz. 569, 937 P.2d 1375, 1380-81 (Ariz.App.1996); In re Estate of Holmes, 821 P.2d 300, 304 (Colo.App.1991); Estate of Rosen, 520 A.2d 700, 701 (Me.1987); In re Estate of Evenson, 505 N.W.2d 90, 92 (Minn.App.1993); In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292, 296 (1993); In re Estate of Frietze, 126 N.M. 16, 966 P.2d 183, 187 (N.M.App.1998). Nearly all of these states adhere to a literal reading of section 3-720, imposing only the requirements found in it-that the claimant be either a personal representative or a nominated personal representative, that he or she have prosecuted the action in good faith, and that charges be reasonable and necessary. See, e.g., Holmes, 821 P.2d at 304 (citation omitted); Evenson, 505 N.W.2d at 92; Watkins, 501 N.W.2d at 296; Frietze, 966 P.2d at 187. But see Estate of Bri-deau, 458 A.2d 745, 747 (Me.1983) (stating that under Maine statute, party who unsuccessfully contests will on basis of undue influence cannot recover attorney's fees from estate).

      . Subsection (3) ["promote a speedy and efficient system for liquidating the estate ... and making distribution''] arguably may be impeded by a system that allows a challenger to recover costs and fees, thereby encouraging challenges and delaying liquidation and distribution.

      . AS 13.16.435.

      . Id.

      . A personal representative, duly appointed, may contest another will that, if valid, would supersede the one naming him, while enjoying the protection of section 3-720. Unirorm Propate Cope Practice Manvar 321 (2d ed.1977).

      . At various places in its decision, the superior court appeared to rest its decision to deny fees on its conclusion that Enders's action did not benefit the estate. For example, the court said "... the court must evaluate whether the actions of the personal representative benefitted the estate." At another point it said, "Ms. Enders' claim did not bring about an enhancement in value or an increase in the assets of the estate."

      . - At no stage pre-trial or at trial did Ms. Enders claim that she was acting as personal representative. She makes this claim only after trial.... The entire tenor of Ms. Enders' case was a contest for her own personal benefit and the benefit of her family, not for the estate.... The real impetus behind the litigation is the Enders[] family's] personal animosity and disdain for Connie Parker, the primary beneficiary of Joel W. Kottke's 1997 will. This immense distaste for Ms. Parker has propelled Ms. Enders to drain Mr. Kottke's modest estate through litigation rather than have Ms. Parker benefit from the estate. Her intervention in the probate of the 1997 [will} has only hindered the disposition of Mr. Kottke's estate in a manner that comported with his testamentary intent.
      No. 3AN-97-1124 P (Alaska Super., September 21, 1999).

      . S.L. v. J.H., 883 P.2d 984, 986 (Alaska 1994) (citing Murray v. Murray, 856 P.2d 463, 466 (Alaska 1993)).

      . In the event that the superior court finds that Enders acted in good faith, it should proceed to determine whether, pursuant to AS 13.16.435, Enders's claimed expenses and disbursements were "necessary," and whether her incurred attorney's fees were "reasonable." We interpret the statute to allow the court to award only those disbursements that were necessary and only those attorney's fees that were reasonable.

      . AS 13.16.350(a).

      . - Paskvan v. Mesich, 455 P.2d 229, 232 (Alaska 1969).

      . Black's Law Dictionary 625 (6th ed.1990).

      . AS 13.16.350(a).

      . Supra Part IV.A.3.

      . Alaska R. Civ. P. 82(a).

      . AS 13.16.435.

      . Cf. Bobich v. Hughes, 965 P.2d 1196, 1200 (Alaska 1998) (stating that statutory attorney's fees provision awarding full fees ordinarily take precedence over Rule 82 provision awarding partial attorney's fees); Whaley v. Alaska Workers' Comp. Bd., 648 P.2d 955, 959 (Alaska 1982) (holding that prevailing employer could not obtain attorney's fees because granting such fees would undermine purposes of Alaska Workers' Compensation Act and limit claimant's ability to seek appellate relief).

      . Because this court's order granting rehearing, from which I dissented, withdrew the original opinion from publication and precluded its citation "for any purpose," see Order Granting Pet. for Reh'g, $-9341/9391 (April 4, 2002), the opinion has now been withdrawn from the bound volumes of the Alaska Reporter. The original opinion nonetheless remains available for historical reference as Westlaw document 28 P.3d 280.

      . Op. on Reh'g at 14.

      . Op. on Reh'g at 14-16.

      . Op. on Reh'g at 16 (internal footnote and paragraphing omitted).

      . 6 Alaska 673 (D.Alaska. Terr.1922).

      . - Id. at 678.

      . Emphasis added.

      . Op. on Reh'g at 16.

      . See In re Estate of Kottke, 6 P.3d 243, 248-49 (Alaska 2000). In these earlier findings the superior court observed that, although Parker and Kottke "were intimately involved in each other's lives," members of Enders's family "never took to Connie Parker.... The real crux is the alienation of affection in the relationship between Connie Parker and [Enders's] family," who "did not accept Connie Parker{.]" Id. at 248. The superior court described the Enders family as "outspoken in its animosity towards Connie Parker as early as 1993, with the most favorable testimony from the Enders family being that Connie Parker was 'tolerable.'" Id. According to the court, "some of the worst words in the case were spoken by Greg Enders in his testimony, where he described Connie Parker as a 'decrepit old woman.'" Id. at 248-49. By the time Kottke died in 1997, the court found, the situation had evolved into a "feud" that had led to "a failing relationship" between Enders and Kottke. Id. at 249. "[Elven at the time of Joel Kottke's death," the court noted, "there was a dispute as to who was and was not family, rather than an acceptance that Joel Kottke had many families." Id.

      . Id. at 245.

      . Op. on Reh'g at 16.

      . To the extent that the opinion's doubts stem from the superior court's asserted focus on whether Enders's actions benefited the estate, this dissent has addressed the issue by demonstrating that the superior court did not erroneously focus on the benefit-to-the-estate requirement.

      . Op. on Reh'g at 16-17.

      . Paskvan v. Mesich, 455 P.2d 229, 232 (Alaska 1969).

      . AS 13.16.350(a) states:
      A personal representative is a fiduciary who shall observe the standards of care applicable to trustees under AS 13.36.225-13.36.290. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and AS 13.06-AS 13.36, and as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by AS 13.06-AS 13.36, the terms of the will, if any, and any order in proceedings to which the personal representative is party for the best interests of successors to the estate.

      . AS 13.36.245 defines the duty of loyalty, stating: "A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries." AS 13.36.250 governs the duty of impartiality: "If a trust has two or more beneficiaries, the trustee shall act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries."

      . AS 13.36.245; AS 13.36.250.

      . Op. on Reh'g at 16-17.

      . As the commentary to the Uniform Probate Code makes clear, "Litigation prosecuted by a personal representative for the primary purpose of enhancing his prospects for compensation would not be in good faith." Uni. Prosate Cope § 3-720 cmt., 8 U.L.A. 184 (1998). See, e.g., Oliver v. City of Larimore, 540 N.W.2d 630, 634 (N.D.1995).

      . Emphasis added.

      . As noted above, the superior court's findings are amply supported by the record, as well as by the superior court's dispositive findings on the merits of the will contest.