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Native Village of Tununak v. State

Supreme Court of Alaska

June 21, 2013


Appeal from the Superior Court of the State of Alaska, No. 3AN-08-00259 CN Third Judicial District, Anchorage, Frank A. Pfiffner, Judge.

Appearances: James J. Davis, Jr. and Sydney Tarzwell, Alaska Legal Services Corporation, Anchorage, for Appellant.

Jacqueline G. Schafer, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

Heather Kendall-Miller and Erin C. Dougherty, Native American Rights Fund, Anchorage, for Amicus Curiae Native Village of Kotzebue.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.


STOWERS, Justice.


The Indian Child Welfare Act (ICWA)[1] establishes adoptive placement preferences for placing an Indian child with a member of the child's extended family, with other members of the child's tribe, or with other Indian families.[2] A court may deviate from these preferences only upon a showing of good cause.[3] ICWA does not state what standard of proof applies to the good cause determination, nor does it state what factors a court must consider in determining whether there is good cause to deviate from the preferences.

In this child in need of aid (CINA) case, the Office of Children's Services (OCS) placed a Native child in a non-Native foster home while working with her mother towards reunification.[4] Over two years later, the superior court terminated the parents' parental rights. The child's maternal grandmother and tribe sought to enforce ICWA's placement preferences. Meanwhile, the child's foster parents petitioned for adoption. The superior court found that there was good cause to deviate from the ICWA adoptive placement preferences and that the grandmother was not a suitable placement for the child.

The tribe appeals, arguing: (1) the superior court applied the wrong standard of proof to the good cause determination; (2) some of the superior court's findings were not supported by sufficient evidence; and (3) the findings were not sufficient to support the court's good cause determination.

This appeal requires us to reexamine policies that underlie ICWA. Though we have previously held that the preponderance of the evidence standard set forth in Adoption Rule 11 applies, upon closer review we conclude that ICWA implicitly mandates that good cause to deviate from ICWA's adoptive placement preferences be proved by clear and convincing evidence. To the extent our prior cases hold otherwise, they are overruled. We therefore vacate the superior court's decision and remand for further proceedings in which the superior court shall apply the clear and convincing standard of proof to the good cause determination. We do not reach all the issues raised on appeal because we are remanding, but we address some of the tribe's arguments regarding the good cause determination to provide guidance to the superior court and the parties on remand. We also clarify the analysis necessary when a party challenges the suitability of a preferred placement.


A. Termination Of Parental Rights

Dawn F.[5] is an Indian child as defined by ICWA.[6] OCS assumed custody of Dawn when she was approximately four months old. The superior court found that she was a child in need of aid pursuant to AS 47.10.011(9) (neglect), (10) (substance abuse), and (11) (mental health issues), and ultimately terminated the parental rights of both of her parents. Dawn's parents did not appeal the termination of their parental rights.

B. Pre-Termination Placement

ICWA provides that when selecting foster care, preadoptive placement, or adoptive placement for an Indian child, preference must be given to a member of the child's extended family unless there is "good cause" to deviate from this placement preference.[7] OCS assumed custody of Dawn in July 2008 and placed her in emergency foster care in Anchorage. Native Village of Tununak ("the Tribe") intervened in Dawn's CINA case and submitted a list of potential placement options for Dawn, including placement with her maternal grandmother, Elise F., who lives in the village. Elise and a representative from the Tribe met with OCS in July and September to discuss placement options for Dawn, and a tribal ICWA social worker contacted OCS in September to inquire about efforts to place Dawn with Elise.

Elise was ruled out as a viable placement option at that time: an adult son living in her home had been convicted of driving under the influence in 2005, and there was a bench warrant out for his arrest because he had failed to complete an alcohol safety program as required by his sentence. OCS concluded that his conviction constituted a barrier-crime for placement purposes. Other family members also were ruled out for various reasons, including criminal and child protective histories. OCS placed Dawn in a non-Native foster home in Anchorage to facilitate visitation with her mother, Jenn F., who lived in Anchorage.

In November 2008 the parties stipulated that there was good cause to deviate from ICWA placement preferences while a search for preferred placements continued. In March 2009 the superior court found there was good cause to continue deviating from ICWA placement preferences and allow Dawn to remain in Anchorage to facilitate visitation with Jenn, who was making "great progress towards reunification" at that time. The guardian ad litem later testified that moving Dawn away from Jenn would have effectively terminated their relationship, given Dawn's young age. Grandmother Elise testified that she did not pursue placement at that time because she hoped Dawn and Jenn would be reunited.

In August 2009 Elise contacted OCS to report that her son had moved out of her home and to confirm that she was still interested in placement. In October 2009 an ICWA social worker for the Association of Village Council Presidents (Village Council Presidents or AVCP) asked OCS to do a "walk through" of Elise's home. At a six-month conference in November 2009, an OCS social worker noted that Elise was able to take Dawn and wanted permanent placement. In December 2009 a representative from the Village Council Presidents visited Elise's home on OCS's behalf and completed a Foster Home Visit Worksheet as part of the foster-care licensing process. The report noted a number of potential hazards in the home that needed to be addressed before placement could occur, including unsecured fuel, guns, medicine, and cleaning supplies, as well as plastic bags and "clutter" in Dawn's potential bedroom. In February 2010 OCS discussed these concerns with Elise, and she said that she planned to address them. OCS asked Elise to arrange for a second home visit once these tasks had been completed.

Meanwhile, in October 2009 OCS placed Dawn with Kim and Harry Smith, another non-Native foster home in Anchorage, because Dawn's previous foster parents could not provide the high level of attention she required. At that time Dawn was easily upset, difficult to soothe, and prone to tantrums and emotional outbursts. Physical and occupational therapy was recommended for Dawn because at ten months of age she tested in the five-to-six-month range for language and motor skills. According to an OCS social worker, the Smiths' home was very calm and quiet, and they were able to give Dawn the one-on-one attention that she needed.

In December 2009 Elise visited Anchorage, and Kim arranged for her to visit with Dawn. Kim gave Elise her address and phone number, asked her to keep in contact, and asked her to send a photograph of herself to Dawn. Kim sent a Christmas card to Elise with photographs of Dawn. Elise did not call or write, and Kim was not able to reach her at the phone numbers she had provided.

In January 2010 the Village Council Presidents contacted OCS to ask about the status of Dawn's potential placement with Elise. An OCS social worker explained that OCS had conducted a home visit and Elise had confirmed that she needed to clear out a room for Dawn. The social worker also stated it was her "understanding that [Elise] is holding off on having [Dawn] placed with her at this point, because that would prevent [Jenn] visiting with [Dawn]."

In May 2010 Elise attended a visit with Jenn and Dawn. She told an OCS social worker that she did not want placement at that time because she thought Jenn would complete treatment and regain custody of her daughter. At a conference in May an OCS social worker noted that Elise had asked for placement throughout the history of the case, but the home study had found that Elise's house was "very unsafe" and she still had not cleaned it up six months later.

In November 2010 the superior court denied a petition to terminate Jenn's parental rights, finding OCS had not made active efforts to provide remedial services and rehabilitative programs.[8] The court again found good cause to continue to deviate from ICWA placement preferences for Dawn's foster care because "any preferred placements would be well outside the Anchorage area and would make visitation much more difficult."

At a status hearing in February 2011 Elise asked if Dawn would be returned to her mother. The superior court explained that it was not safe for Dawn to return to her mother's custody, given Jenn's continuing mental health and drug use issues. Despite Jenn's lack of progress, neither Elise nor the Tribe challenged Dawn's continued placement in Anchorage at that time.

C. Post-Termination Challenges To Placement

In April 2011 OCS filed another petition to terminate Jenn's parental rights, and in September 2011 the superior court terminated her parental rights and freed Dawn for adoption. At that point the Tribe argued there no longer was good cause to deviate from ICWA placement preferences. The court stated it was troubled by the fact that it was unclear whether OCS had pursued any of the Tribe's proposed placements for Dawn, and that an OCS social worker had testified she had not spoken with the Tribe's ICWA representative since being assigned to Dawn's case. The court deferred determining whether there was good cause to deviate from ICW A placement preferences and ordered OCS to submit a report on the availability of ICWA placements.

On October 19, 2011, OCS submitted a report to the superior court listing the Tribe's proposed placements and the reasons why those placements were not viable options. According to the report, most of the individuals had criminal or child protective histories, OCS was unable to locate contact information for some individuals, and others never responded to OCS's inquiries. As to Elise, the report stated: "[Elise F.] completed a homestudy and did not pass the homestudy or complete[] the issues that came out of the homestudy . . . ."

On October 21 the Tribe formally objected to Dawn's placement in Anchorage with an oral objection at a status conference. On November 7 the Tribe filed a motion to show cause against OCS, alleging the placement report falsely stated that an OCS social worker had conducted a home study for Elise and that OCS had failed to correct the report even though OCS was aware that it contained inaccurate information. OCS responded, explaining that a Village Council Presidents' representative had conducted a foster home study on OCS's behalf, and notes from a subsequent meeting incorrectly stated that an OCS social worker had completed the home study. OCS explained that a foster home study includes an evaluation of the physical condition of the home, background checks, and a brief reference, whereas a home study for adoptive purposes is much more thorough.

On November 3, in the midst of this dispute, the Smiths filed a petition to adopt Dawn. Their petition was stayed pending the resolution of the ICWA placement hearing. The superior court held a placement hearing on November 14.

D. Placement Hearing

1. Opening statement of Kathleen Wilson, the guardian ad litem

Kathleen Wilson, the guardian ad litem, stated that she believed it would be in Dawn's best interest to remain with the Smiths because Dawn was three-and-a-half years old at that point and needed permanency. Wilson noted that placement with Elise would be a long process, because: (1) OCS would have to complete a full home study, which could take up to 50 days; (2) OCS would have to work with Elise to gradually establish a bond with Dawn before the child could be moved to her grandmother's home; and (3) Dawn would then have to live with Elise for six months before Elise could formally adopt her. Wilson believed that there was good cause to deviate from ICWA placement preferences, given Dawn's need for permanency, her existing bond with the Smiths, the lack of a bond with Elise, and the length of time it would take for her to achieve permanency if placed with Elise. However, Wilson did not identify any particular reason why Elise would not be a suitable placement for Dawn; her recommendation was based primarily on Dawn's need for permanency and the fact that Dawn was happy and stable with the Smiths.

2. Testimony of Molly Hayes, expert in child development

Molly Hayes, a school counselor with degrees in school counseling and early childhood special education, testified as an expert in child development. She worked with Dawn when Dawn was approximately one year old. Hayes testified that before Dawn moved in with the Smiths, she was easily upset and required more attention and consistency in her routine than other children her age. Dawn had since bonded with the Smiths and the behavioral issues that she exhibited in her previous foster home had diminished. Hayes expressed concern about attempting to transition Dawn away from the Smiths, especially since Dawn viewed the Smiths as her mother and father. But Hayes also testified that she did not know anything about Elise or her home and could not say with certainty that moving Dawn would create an immediate risk to her well-being. Hayes also explained that "split feather syndrome" is a condition that can affect Native children who grow up in a white society and feel they do not belong to either culture, and that this condition can lead to substance abuse and suicide in young adulthood.

3. Testimony of Sarah Wood, OCS supervisor

Sarah Wood, an OCS supervisor, testified that she talked to Elise about Dawn's placement in February 2010, and Elise told her that she had not completed the recommendations for making her home safe but planned to address those concerns. Wood explained that an OCS social worker had not visited Elise's home because OCS has a difficult time maintaining staffing in its rural offices and sometimes has to partner with tribal ICWA workers to perform home visits, which is what happened in this case. Wood testified that if the foster home report had concluded that Elise's home was ready for placement, then OCS would have performed a background check on every adult in the home and would have placed Dawn with Elise if the background checks were clear. Wood explained that if Dawn had been placed with Elise for foster care, a more extensive home study would have been completed prior to adoption.

4. Testimony of Talia Robinson, OCS case worker

Talia Robinson, Dawn's OCS case worker, explained that it typically takes 18 months to two years for a child to achieve permanency, but Dawn had been in OCS custody for over three years. Robinson believed it was in Dawn's best interests to be adopted by the Smiths because she had stability there and it was the only home she had ever known.

Robinson also testified about Dawn's placement history. According to Robinson, moving Dawn away from Anchorage before Jenn's parental rights were terminated would have harmed reunification efforts. Dawn was not initially placed with Elise because of her son's criminal history. OCS arranged for a home visit in August 2009 when Elise reported that her son had moved out, but in May 2010 Elise told Robinson that she did not want placement because she wanted Jenn to be reunited with Dawn. Robinson expressed concern that Elise had known about the home visit safety recommendations for a long time, but as recently as November 2, 2011, Elise told Robinson that her home was still not ready for Dawn. Robinson explained that OCS does not send workers to help a potential foster parent make her home physically safe because it is important for the person to show that she is truly interested in placement and demonstrate that she is able to provide for the child's safety on her own.

Robinson further testified that driving under the influence is a barrier-crime for only five years; therefore, Elise's son's 2005 conviction was no longer a barrier to placement as of the November 2011 placement hearing. Robinson also testified that Elise, her husband, and her son did not have any other criminal or child protective history that OCS was aware ...

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