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Native Village of Tununak v. State, Dep't of Health & Soc. Servs.

Supreme Court of Alaska

September 12, 2014


Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Frank A. Pfiffner, Judge. Superior Court No. 3AN-11-02236 PR.

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, State of Alaska.

Kenneth C. Kirk, Anchorage, for Appellees, H.S. and K.S.

Notice of nonparticipation filed by Kristen C. Stohler, Stohler Law, P.C., Palmer, on behalf of Kathleen Wilson, Anchorage, Guardian Ad Litem.

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

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


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STOWERS, Justice.


This is the second appeal in a case that began in July 2008 when the Alaska Office of Children's Services (OCS) assumed custody of four-month-old Dawn[1] from her parents.[2] Dawn was found to be a child in need of aid (CINA).[3] Dawn's parents were Alaska Natives and thus the protections and requirements of the Indian Child Welfare Act (ICWA)[4] applied to the CINA case.[5] One of ICWA's provisions establishes preferences for foster care and adoptive placement of 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.[6] Native Village of Tununak (the Tribe) intervened in Dawn's CINA case and submitted a list of potential placement options for Dawn, including Dawn's maternal grandmother, Elise, who lives in the village.[7] Throughout much of the case, the parents and Tribe agreed there was good cause not to place Dawn with an ICWA preferred placement, and Dawn was eventually placed with the Smiths, non-Native foster parents who live in Anchorage.[8]

The superior court terminated Dawn's parents' parental rights at a September 2011 trial, making Dawn eligible for adoption.[9] The Tribe asserted that, given the termination of parental rights, there was no longer good cause to deviate from ICWA's placement preferences and objected to Dawn's continued placement in Anchorage.[10] In November the Smiths filed a petition to adopt Dawn.[11] At no point in the case did Elise file an adoption petition in the superior court.

The superior court conducted a placement hearing following the Tribe's objection to placement with the Smiths.[12] Following testimony by a number of witnesses, including Elise,[13] the court found that there was continued good cause to deviate from ICWA's adoptive placement preferences and again approved Dawn's placement with the Smiths.[14] The court then granted the Smiths' adoption petition in March 2012.[15] Dawn was almost four years old, and had

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lived with the Smiths for almost two and a half years.[16]

In separate appeals, the Tribe appealed both the superior court's order finding that there was good cause to deviate from ICWA's placement preferences and the adoption order.[17] We issued an order staying the adoption appeal while we considered the adoptive placement appeal.[18]

On June 21, 2013, we issued our decision in the first appeal that examined Dawn's adoptive placement with the Smiths.[19] We reversed the superior court's finding of good cause to deviate from ICWA's placement preferences.[20] Though we had held in previous cases that the preponderance of the evidence standard was the correct standard of proof, we were convinced by the Tribe's argument that the preponderance standard was inconsistent with Congress's intent in enacting ICWA, and that a higher standard of proof -- proof by clear and convincing evidence -- was required.[21] We overruled our prior cases and remanded the adoptive placement case to the superior court for it to take additional evidence and make its determination whether there was clear and convincing evidence of good cause to deviate from ICWA's adoptive placement preferences.[22] We continued our stay order of the adoption appeal.[23]

Four days after we issued our opinion in the adoptive placement appeal ( Tununak I ), the United States Supreme Court issued its opinion in Adoptive Couple v. Baby Girl ( Baby Girl ).[24] There, the Supreme Court held that ICWA " § 1915(a)'s [placement] preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no 'preference' to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward." [25]

We asked the parties to provide supplemental briefing and oral argument on the effect of the Supreme Court's Baby Girl decision on the adoption appeal currently before us.[26] We now hold that because the United States Supreme Court's decisions on issues of federal law bind state courts' consideration of federal law issues -- including the Indian Child Welfare Act -- the decision in Baby Girl applies directly to the adoptive placement case on remand and to this adoption appeal. We discern no material factual differences between the Baby Girl case and this case, so we are unable to distinguish the holding in Baby Girl. Because the Supreme Court's holding in Baby Girl is clear and not qualified in any material way, and because it is undisputed that Elise did not " formally [seek] to adopt" Dawn in the superior court,

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we conclude that, as in Baby Girl, " there simply is no 'preference' to apply[,] [as] no alternative party that is eligible to be preferred under § 1915(a) has come forward[,]" and therefore ICWA " § 1915(a)'s [placement] preferences are inapplicable." [27] We affirm the superior court's order granting the Smiths' petition to adopt Dawn and vacate our remand order in Tununak I requiring the superior court to conduct further adoptive placement proceedings. We do not otherwise disturb our decision in Tununak I.


A. Facts

Dawn F. was born in Anchorage in March 2008.[28] When she was four months old OCS assumed emergency custody and placed her in foster care in Anchorage.[29] The Tribe formally intervened in Dawn's CINA case in August 2008 and submitted a list of potential foster placement options under Alaska Child in Need of Aid Rule 8(c)(7)[30] for Dawn, including placement with her maternal grandmother, Elise F., who lived in Tununak.[31] Elise discussed foster placement at meetings with OCS in July and September 2008, but OCS ruled her out as a potential placement because an adult son living with her at the time had a barrier-crime for placement purposes.[32] OCS placed Dawn in a non-Native foster home to facilitate visitation with her mother, Jenn F., who lived in Anchorage.[33] In November 2008 the parties stipulated that there was good cause to deviate from ICWA's placement preferences, and in March 2009 the superior court found there was good cause to continue the deviation, as Jenn was progressing with her OCS case plan and it appeared she might be reunited with Dawn.[34] In August 2009 Elise contacted OCS to report that her son had moved out; she confirmed that she still sought foster placement.[35]

In October 2009 OCS placed Dawn with non-Native foster parents Kim and Harry Smith in Anchorage, and in December 2009 Elise visited Dawn.[36] Following this meeting, Elise did not call, write, or communicate with Dawn.[37] Also in December 2009 a representative from the Association of Village Council Presidents visited Elise's home in Tununak on OCS's behalf and noted potential hazards in the home that needed to be addressed before placement could occur.[38] These included unsecured guns, cleaning supplies, medicine, and general clutter in the area that Elise planned to use as Dawn's bedroom.[39] In February 2010 Elise assured OCS she would remedy these issues, and OCS asked Elise to arrange for a second home visit once she made the proposed changes.[40]

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In May 2010 Elise attended a visit with Jenn and Dawn and told an OCS social worker that she thought Jenn would complete substance abuse treatment; Elise did not seek foster placement at that time and had not remedied the issues in her home.[41] OCS filed two petitions to terminate Jenn's parental rights: the first was denied in November 2010, and a second was filed in April 2011.[42] At a status conference in February 2011 Elise was present telephonically, and she questioned the court about whether Dawn would be returned to Jenn.[43] The court advised her in no uncertain terms that it was not safe for Dawn to return to Jenn's household given Jenn's continuing mental health issues and illegal drug use.[44] The superior court ultimately terminated Jenn's parental rights in September 2011.[45] Following termination the Tribe argued there was no longer good cause to deviate from ICWA's placement preferences, and a placement hearing was scheduled.[46]

The Smiths filed an adoption petition on November 3, 2011, and the petition was stayed pending the resolution of the ICWA placement hearing on November 14, 2011.[47]

B. Proceedings

1. The placement hearing and appeal

The superior court noted at the outset of the placement hearing that it would not consolidate the CINA placement case with the adoption case, but cautioned the Tribe that it would not get " two bites at the apple" ; in other words, " if the Tribe los[t], it [would]n't get to contest placement in the adoption proceeding." [48] We explained in Tununak I that " [w]hen the court declined to consolidate the two cases, it stated that the future adoption proceeding would be dependent on the placement ruling in the CINA case" [49] and that " denying the Tribe's objections to adoptive placement [effectively] . . . clear[ed] the way for the Smiths to adopt Dawn." [50]

Elise testified at the hearing.[51] She had previously been an ICWA social worker and was aware of her ICWA rights.[52] When asked if she wanted to take care of Dawn just because the Tribe wanted her to she answered with an equivocal " [y]es and no." [53] She clarified: " [I]t is my right to adopt or take my granddaughter and . . . raise her as an Alaska Native . . . because she is part of my flesh and blood and so that she [can] learn her values in Native culture and traditions and where she came from." [54] Elise also said that she had not been able to see Dawn very often due to the expense of travel; she did not call or write letters to Dawn because the child was too young to read or communicate; she knew Dawn did not know her at that point; and she understood Dawn would have to be gradually introduced to life in the village to prevent culture shock.[55] Elise testified that she wanted Dawn to be placed with her " from the beginning" and she recognized that " if [Dawn] had moved [in] with me when [Dawn] was [a] young infant, then it could have been easier because [Dawn] would have known [her] grandmother[,]" but at this point Dawn had been " raised by [Kim and Harry Smith]." Elise also indicated at this hearing that she had filed a petition to adopt Dawn, but the record contains no evidence that such a petition was ever filed, and no party has argued to the contrary.[56]

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In its decision on placement the superior court noted that Elise was 67 years old and would be 82 when Dawn turned 18.[57] The court found Elise's testimony on the question of whether she wanted to adopt Dawn " less than convincing" and pointed out that she had maintained almost no contact with Dawn and knew nothing of Dawn's life in Anchorage.[58] The court also found that Elise testified that she wanted to adopt Dawn because the Tribe wanted her to.[59] The court found that the Smiths had been " exceptional foster parents" to Dawn.[60] Ultimately, the court determined there was good cause to deviate from ICWA's placement preferences by a preponderance of the evidence in accordance with Alaska Adoption Rule 11(f).[61] The Tribe moved to stay the Smiths' adoption proceeding pending the Tribe's appeal of the placement ruling to our court, but this motion was denied.[62]

2. The adoption hearing and appeal

On March 6, 2012, the superior court held an adoption hearing and granted the Smiths' adoption petition.[63] At that hearing the court noted that, since the placement hearing, " [n]o individual has come forward" and " [n]o names have been put forward of somebody who would be ICWA compliant under 1915(a) and the [Smiths] have been there for Dawn for . . . these several years and the child's almost four." The court concluded it was in Dawn's best interest to be adopted that day by the Smiths, but cautioned that " the adoption [could] be reversed . . . anything could happen including removal of the child" from the Smiths' care. Elise did not appear at the adoption hearing.

The Tribe appealed the adoption to our court. On November 29, 2012, we issued an order sua sponte staying the adoption appeal pending our decision in ...

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