JESSIE C. RICE, Appellant,
JOHN C. McDONALD and CHARLES RICE, Appellees.
from the Superior Court No. 4FA-14-03084 CI of the State of
Alaska, Fourth Judicial District, Fairbanks, Michael A.
C. Rice, pro se, Anchorage, Appellant.
of nonparticipation filed by Jason F. Doxey, Burglin &
Doxey, PC, Fairbanks, for Appellee John C. McDonald. No
appearance by Appellee Charles Rice.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
father of three Indian children killed their mother. After
the father's arrest, the father's relatives moved the
children from Alaska to Texas and gained custody of the
children through a Texas district court order. The
mother's sister filed a separate action against the
father in Alaska superior court, seeking custody of the
children and challenging the Texas order. Although Alaska had
exclusive jurisdiction to make the initial custody
determination, the Alaska court concluded that Texas was the
more appropriate forum and ceded its jurisdiction to the
Texas court, primarily because evidence about the
children's current status was in Texas.
vacate the superior court's decision. It was an abuse of
discretion to minimize the importance of protecting the
children from the father's alleged domestic violence and
to minimize evidence required to resolve domestic violence
and Indian Child Welfare Act issues in this case.
FACTS AND PROCEEDINGS
McDonald and his wife were the parents of three minor
children born between 2006 and 2010. The parties agree that
the children are "Indian children" as defined by
the Indian Child Welfare Act (ICWA). The children have maternal
relatives living in Anchorage and paternal relatives living
children were born and raised in Fairbanks, and the family
lived together in Fairbanks until McDonald killed his wife in
March 2014. In August McDonald was arrested, incarcerated,
and charged with his wife's murder. He eventually pleaded
guilty to criminally negligent homicide in April 2016.
after his August 2014 arrest, McDonald's sister, Rebecca
Schimcek, moved the children from Fairbanks to Texas. That
September Schimcek and other paternal relatives filed a
custody petition with McDonald's consent in Texas
district court. The paternal relatives did not disclose
McDonald's pending murder charge in their petition, and
the maternal relatives were not notified of the proceeding.
The Texas district court primarily awarded custody of the
children to Schimcek and her husband. The order did not
contain any reference to potential domestic violence by
next month Jessie Rice, sister of the deceased mother, filed
a separate custody petition against McDonald in Alaska
superior court, asserting that the mother was deceased and
that McDonald was incarcerated and awaiting trial for her
murder. Rice's father later joined her in the case, but
he did not appear in this appeal. She also filed a motion to
vacate the Texas order. McDonald moved to dismiss, arguing
that the Alaska court lacked jurisdiction to modify the Texas
superior court denied McDonald's motion to dismiss in
November 2015. The court applied the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), which defines a
priority scheme for determining initial jurisdiction in child
custody matters. The court concluded that Alaska, not
Texas, had exclusive jurisdiction to make the initial custody
determination for the children because Alaska had a higher
jurisdictional priority than Texas and had not declined to
exercise its jurisdiction. Although the Texas custody order was
proper under Texas's temporary emergency jurisdiction,
the court explained that the Texas order would cease to be
effective once the Alaska court issued a final custody
order. The court also ordered Rice to join the
paternal relatives as necessary parties.
after its decision the Alaska court held a telephonic
conference with a district court judge in Texas. In late
November the Alaska court requested supplemental briefing
based on the UCCJEA's inconvenient forum provision, which
allows a state with higher priority to cede jurisdiction to a
lower priority state if the other state is a more appropriate
forum. McDonald argued that the Alaska court
should cede its jurisdiction to Texas; Rice disagreed and
argued that the case should remain in Alaska. Rice also
claimed that the proceeding was subject to ICWA and argued
that evidence required by ICWA, along with evidence related
to the homicide, was located in Alaska.
submitted an affidavit which established that the children
were living with her in Texas. She described each child's
current situation, including counseling, healthcare,
education, and socialization. She claimed that "[a]ny
pertinent testimony or evidence of the children's current
well[-]being is here in Texas."
next month the Alaska court declined to exercise its
jurisdiction, concluding that a court in Texas would be a
more appropriate forum to make the initial custody
determination. The court based its decision on the evidence
in Texas about the children's current status, finding
most of the other factors neutral and minimizing the
significance of the homicide allegations against McDonald
because he was incarcerated. The court suggested that ICWA
would not apply unless the children were "placed into
state custody" and later explained that "[a]ny
requirements of . . . ICWA can be addressed by the Texas
court." The court dismissed the Alaska case and ceded
jurisdiction to Texas.
appeals. McDonald filed a notice of non-participation.
argues that ICWA applies to this proceeding. She also argues
that the Alaska superior court afforded too much weight to
the Texas evidence in its decision to decline jurisdiction.
ICWA Applies To The Alaska Custody Proceeding.
apply our independent judgment when interpreting federal
statutes such as ICWA.
applies "to child custody proceedings involving Indian
children." "Child custody proceeding" is
defined to include "foster care placement, " which
itself is defined to include "temporary placement in...
the home of a guardian... where the parent . . . cannot have
the child returned upon demand." Since the
early days of ICWA, we have rejected the claim that ICWA
applies "only to custody proceedings involving the
removal of Indian children from their homes by nonfamily
public and private agencies." Thus we have applied ICWA
in a custody dispute between grandparents,  in a custody
dispute between a father and a stepfather after the mother
died,  and generally to "custody disputes
within the extended family" even when the case