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Ted W. v. State, Dept. of Health & Social Services, Office of Children's Services

Supreme Court of Alaska

March 27, 2009

TED W., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

Page 334

Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Appellant.

Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee State of Alaska.

Angela Greene, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Mother.

Before : FABE, Chief Justice, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

This appeal arises from the superior court's decision to allow a mother to revoke the Indian custodian status for her child's

Page 335

father, whose own parental rights to the child had already been terminated. The father's status as the child's Indian custodian under the Indian Child Welfare Act was based solely on the mother's temporary transfer of physical care and custody of the child to the father after termination of his parental rights. After the Office of Children's Services (OCS) removed the child from the father and became the child's temporary legal custodian, the mother joined in OCS's motion to terminate the father's status as the child's Indian custodian. The superior court correctly reasoned that because the Indian custodianship was created solely by the mother's temporary placement of the child with the father, that custodianship could be revoked by the mother who acted in concert with OCS as the child's legal custodian. We therefore affirm the superior court's decision.

II. FACTS AND PROCEEDINGS

A. Facts

Danny was born in November 1998 to Ted and Joanne.[1] Danny is a member of the Native Village of Fort Yukon.[2]

Ted's parental rights to Danny, as well as to Danny's half-sister Teena, were terminated in April 2001.[3] Joanne's parental rights remained intact. In affirming the termination of Ted's parental rights, we described Ted's " long history of alcohol abuse, violence, and incarceration," including convictions for manslaughter, malicious destruction of property, and criminal mischief as well as multiple convictions for assaulting Joanne in the children's presence and assaulting Teena's mother while she was pregnant.[4] Ted appears to have stopped drinking in 2004, but he relapsed on at least one occasion in the fall of 2007 when he was arrested and incarcerated for driving under the influence.

With Joanne's permission, Ted began having unsupervised visits with Danny during weekends in 2002. By 2007 Danny was spending most weekends at Ted's home, from the time Ted picked him up at school on Friday until Ted dropped him off on Sunday night. In late spring of 2007, Ted tried to return Danny to Joanne's care, but no one was home. OCS had taken temporary custody of four of Danny's half-siblings who had been living at the home that Joanne shared with the half-siblings' father. Ted recalled that shortly Before OCS told him to not return Danny to Joanne, Joanne asked him to keep Danny because " she didn't want the state involved with [Danny's] life." Danny continued to live with Ted on a full-time basis until August 2007 when OCS removed Danny from Ted's care and filed an emergency petition for adjudication of ...


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